Citation Nr: 21066735 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 19-25 422 DATE: November 2, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for diabetic peripheral neuropathy of the lower extremities is denied. FINDINGS OF FACT 1. The Veteran's audiometric test findings do not result in a compensable rating for bilateral hearing loss. 2. The Veteran's tinnitus has been assigned a 10 percent evaluation which is the maximum evaluation authorized under Diagnostic Code 6260. 3. The preponderance of the evidence is against finding that the Veteran's diabetes mellitus, type II, was manifested in service or in the first year following the Veteran's discharge from active duty or is otherwise related to an in-service injury, event, or disease. 4. The Veteran's bilateral lower extremity peripheral neuropathy was not initially manifested during service, may not be presumed to have been incurred during service, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. The criteria for an increased rating in excess of 10 percent for service-connected tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.87, Diagnostic Code 6260. 3. The criteria for service connection for diabetes mellitus, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for bilateral lower extremity peripheral neuropathy as due to diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from February 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial compensable rating for bilateral hearing loss The Law and Regulations that address Hearing Loss are as follows: Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment uses controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional patter of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Veteran contends that his bilateral hearing loss should be rated at a compensable rating from December 2016, the date of the Veteran's claim for service connection for this benefit. In July 2017, the Veteran was provided a VA audiological examination. The Veteran complained of high-pitched ringing in the ears, struggling to hear people talk and having to turn up the TV and radio. The examination revealed the following pure tone thresholds in decibels: HERTZ Left Ear Right Ear 1000 45 45 2000 45 45 3000 50 40 4000 60 60 Average 50 48 Using the Maryland CNC test, the speech recognition score was 96 percent in the right ear and 94 percent in the left ear. There is no exceptional pattern of hearing loss shown. Using speech discrimination and pure tone threshold averages, these audiometry test results equate to Level I, bilaterally. 38 C.F.R. § 4.85. Thus, when applying Table VII, Diagnostic Code 6100, level I for the right ear and level I for the left ear equates to a noncompensable disability evaluation. The Court has clarified that the provisions of 38 C.F.R. §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In other words, the Veteran's complaints regarding his hearing loss are fully encompassed by the schedular disability ratings provided in 38 C.F.R. §§ 4.85 and 4.86. As observed above, this exercise is a mechanical one, with no interpretative leeway. Lendenmann. The Veteran's hearing acuity fits squarely within the criteria for the noncompensable disability rating, and significant diminution in his hearing would be required for the award of a 10 percent disability rating. Although the Board sympathizes with the Veteran's frustration at his decreased hearing acuity, we are constrained to follow the law and regulations as they are written and to apply them equally to all similarly situated Veterans. The preponderance of the evidence is against the claim for a compensable disability rating and the appeal is denied. 2. Entitlement to an initial rating in excess of 10 percent for tinnitus The Veteran was granted service connection for tinnitus in a March 2018 rating decision. At that time, this disability was rated 10 percent effective December 27, 2016, the date of his initial claim. This is the maximum schedular rating available for this disability. See 38 C.F.R. § 4.87, DC 6260, see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260 limit a veteran to a single disability for tinnitus, regardless of whether the tinnitus is unilateral or bilateral). At the July 2017 VA audiological examination, the Veteran noted that tinnitus made it difficult to hear. The Veteran's current 10 percent rating is the maximum schedular rating available for this disability. See 38 C.F.R. § 4.97, DC 6260. Based on the above, the Veteran has symptoms of tinnitus, a ringing sound in his ears, impacting his ordinary conditions of daily life. The Veteran is currently service connected for his hearing loss and in receipt of a noncompensable rating from December 27, 2016. While the Veteran has reported constant bilateral and worsening tinnitus, these symptoms are contemplated under the current rating for his tinnitus. The evaluation of the same manifestation under different diagnoses is to be avoided as it would amount to impermissible pyramiding. See 38 C.F.R. § 4.14. Thus, the diagnostic criteria specifically contemplate the Veteran's tinnitus symptomatology, and the schedular criteria compensates for functional impairment that results from this symptomatology. The Veteran's reported impairments due to his service-connected disability are not exceptional or unusual functional limitations resulting from tinnitus, and are, thus, reasonably compensated by the 10 percent rating. Consequently, the Board finds the Veteran's tinnitus symptomatology, and the resulting functional impairment, are contemplated by the ratings schedule. Thus, referral for extraschedular consideration is not warranted. Therefore, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for tinnitus, and the claim must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. SERVICE CONNECTION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Alternatively, certain chronic diseases, including prostate cancer and diabetes mellitus, will also be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 U.S.C. § 1116 (f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. If a Veteran was exposed to an herbicide agent during active service, certain diseases, to include prostate cancer and diabetes mellitus, shall be service connected even though there is no record of such disease during service. 38 C.F.R. §§ 3.307, 3.309(e). 1. Entitlement to service connection for Diabetes Mellitus, Type II (DM) The Veteran has asserted that his diabetes mellitus, type II are associated with exposure to Agent Orange during military service in Okinawa, Japan. See December 2016 VA 21-526EZ, Fully Developed Claim; see also April 2018 Notice of Disagreement (NOD). VA regulations provide that these are conditions presumed to be associated with herbicide agent exposure in service, assuming such exposure has been demonstrated. 38 C.F.R. § 3.309 (e). The Veteran's VA treatment records reflect a diagnosis of diabetes, which satisfies the first element of a service connection claim. See VA Medical Treatment Records. Notwithstanding, the claims for service connection for diabetes mellitus, type II, must be denied because there is no competent evidence that the Veteran was exposed to herbicides. In this case, the Veteran does not contend, and the evidence does not show, that he served in the Republic of Vietnam or Korea. As to the Veteran's contention that he was exposed to Agent Orange in Okinawa, Japan, a review of the Department of Defense (DOD) inventory of herbicide operations found that no tactical herbicides were transported to, used, stored, buried, or tested on Okinawa, Japan. See March 2018 US Army and Joint Services Records Research Center (JSRRC) Memorandum. Additionally, JSRRC consider service aboard the USS Gridley with service on the river into Da Nang. JSRRC found that the USS Gridley served in or around the waters of Vietnam in January 1967, prior to the Veteran's service on active duty. See Id. The Board is mindful of the Veteran's belief that he was exposed to Agent Orange while service in Okinawa. After careful consideration, the Board finds that these statements do not indicate that the Veteran had specific knowledge to identify whether he was exposed to herbicides. After sympathic review, the Board finds that the records of JSRRC, based on review of the official records kept at the time in question, outweigh the probative value of the Veteran's lay statements regarding exposure. Considering all the evidence of record, the Board finds that the evidence weighs against a finding that the Veteran was exposed to the herbicides. Absent a showing of exposure to herbicide, the Veteran's claim does not satisfy the second element of a service connection claim. Furthermore, absent credible evidence of exposure to herbicide agents/Agent Orange, the nexus element of a service connection claim cannot be presumptively satisfied. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. Service connection for diabetes mellitus, type II, as due to exposure to herbicides is not warranted. The Board next finds that service connection for diabetes mellitus, type II, is not warranted on a presumptive basis as a chronic disease. See 38 C.F.R. §§ 3.307, 3.309. The Board acknowledges initially that both prostate cancer and diabetes mellitus, type II, are diseases for which service connection is available on a presumptive basis. See 38 C.F.R. § 3.309 (a). The Veteran does not contend - and the evidence does not show - that he experienced prostate cancer or diabetes mellitus, type II, during active service or within the first post-service year (i.e., by November 1970) such that service connection is warranted for these disabilities on a presumptive basis. It shows instead that both disabilities were diagnosed several decades after his service separation. Thus, the Board finds that service connection for diabetes mellitus, type II is not warranted on a presumptive basis as a chronic disease. A claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a Veteran does not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis. However, in the instant case, the Veteran also is not entitled to service connection for diabetes mellitus on a direct service connection basis. See 38 C.F.R. §§ 3.303, 3.304. The Veteran does not contend, nor do the medical records support a finding, that his diabetes mellitus began during his service. The Veteran's service treatment records (STRs) are silent for any complaints, issues, or documented diabetes mellitus. VA treatment notes show a diagnosis of diabetes some 20 years prior to July 2014. This diagnosis occurs more than 20 years after service and therefore consideration on a direct basis is not warranted The Board recognizes that the Veteran was not afforded a VA examination for his claim of entitlement to service connection for diabetes. For service connection claims, VA is obliged to provide an examination or obtain a medical opinion only where there is an indication in the record that a Veteran's disability may be associated with active service. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). An examination is necessary if there is (1) competent lay or medical evidence of a currently diagnosed disability of persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, and; (3) and indication that the disability or persistent or recurrent symptoms or a disability may be associated with the established in-service event, injury, or disease, or with another service-connected disability, but; (4) there is insufficient competent medical evidence on which to decide a claim. Here, there is no competent evidence that shows a disability may be associated with the established in-service event, and an examination is not warranted in this claim. Here, the basis of the claims is that the Veteran was exposed to herbicides. The Veteran does not contend nor does the evidence show that his diabetes mellitus started during service. Because the evidence does not establish exposure to herbicide, an examination is unnecessary as there is insufficient evidence of in-service incident to establish service connection. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); Waters, 601 F. 3d at 1278. 2. Entitlement to service connection for diabetic peripheral neuropathy of the lower extremities To the extent that the Veteran claims that he is entitled to service connection for peripheral neuropathy of the lower extremities as secondary to diabetes mellitus, the assertion of a secondary relationship fails. The Veteran's diabetes mellitus is herein being denied, consequently, any claimed neuropathy of the lower extremities cannot be secondarily service connected to the diabetes mellitus for compensation purposes. See 38 C.F.R. § 3.310 (a). That is to say, the elimination of one relationship to service, as the supposed precipitant, necessarily also eliminates all associated residual conditions. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Therefore, as the Veteran's peripheral neuropathy has been medically associated with his diabetes, which is not service-connected, the peripheral neuropathy may not be service-connected as a matter of law. 38 C.F.R. § 3.310. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.