Citation Nr: 21077479 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 09-36 904 DATE: December 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for diabetes mellitus to include as due to hypertension is denied. REMANDED Entitlement to service connection for a bilateral shoulder disability to include as due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing loss disability meeting the criteria of 38 C.F.R. § 3.385. 2. The preponderance of the evidence is against a finding that the Veteran's diabetes mellitus is related to his active duty service or caused or aggravated by the Veteran's hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.385. 2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active-duty service with the Army from February 2003 to July 2004 to include service in the Reserves. This matter is on appeal from a May 2008 and February 2011 rating decision. The Board remanded this appeal in January 2015, June 2018, and October 2020 for additional development. Concerning the Veteran's claimed bilateral shoulder disability, the Veteran has made general assertions that his disability is related to service and as a "secondary condition." The Board has since interpreted this to raise a secondary service connection theory relation to his current service-connected disabilities. The Board notes that the Veteran is currently service connected for major depressive disorder; right upper extremity radiculopathy; left upper extremity radiculopathy; lumbosacral strain; cervical strain; right knee osteoarthritis; left knee osteoarthritis; bilateral plantar fasciitis and pes planus; tinnitus; right lower extremity radiculopathy; left lower extremity radiculopathy; gastroesophageal reflux; migraines; and erectile dysfunction. As such, the Board has recharacterized the Veteran's appealed issue to reflect his current contentions. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 ; Allen v. Brown, 7 Vet. App. 439 (1995). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral hearing loss The Veteran asserts bilateral hearing loss as related to his active-duty service. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Service connection for chronic diseases listed in 38 U.S.C. sections 1101 (3) and 38 C.F.R. § 3.309 (a), such as bilateral sensorineural hearing loss, may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Review of the evidence of record shows in a March 2008 VA audiological consultation, the Veteran complained of tinnitus but denied bilateral hearing loss. Puretone measurements found the Veteran's right ear within normal limits but noted the left ear with 40 decibel thresholds at 4000 Hertz. The Veteran in other followup visits denied hearing loss in the review of systems checkup but the provider listed the Veteran with bilateral sensorineural hearing loss without details on puretone thresholds. The Veteran was afforded a December 2011 VA examination. The Veteran's puretone threshold levels in decibels were as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 20 10 20 20 18 LEFT 25 20 35 45 31 Speech recognition scores based on the Maryland CNC Test was 100 percent for the right ear, and 100 percent for the left ear. The Veteran was afforded a December 2016 VA examination. The Veteran's puretone threshold levels in decibels were as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 25 20 25 25 24 LEFT 25 20 25 20 23 Speech recognition scores based on the Maryland CNC Test was 100 percent for the right ear, and 100 percent for the left ear. The examiner noted the previous audio examinations showed fluctuating hearing loss in the left ear, but the current examination did not show any hearing loss meeting VA criteria. The examiner did not specifically address the puretone threshold level measurements of the left ear made in the March 2008 and December 2011 examinations to reconcile the conflicting findings. The Veteran was afforded a May 2019 VA examination. The Veteran's puretone threshold levels in decibels were as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 20 15 20 15 18 LEFT 20 20 25 25 23 Speech recognition scores based on the Maryland CNC Test was 100 percent for the right ear, and 100 percent for the left ear. The examiner noted the Veteran with impaired hearing that did not meet VA criteria. In an August 2019 addendum, the VA examiner stated that there were no consistent hearing loss results in the Veteran's medical record; the examiner noted a mild drop at 8000 Hertz for both ears but did not consider it a valid disability for VA purposes. The examiner did not address the findings in the March 2008 and December 2011 audio examination. The Veteran was afforded an October 2021 VA examination. The Veteran's puretone threshold levels in decibels were as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 10 20 15 15 LEFT 15 15 25 15 17.5 Speech recognition scores based on the Maryland CNC Test was 100 percent for the right ear, and 96 percent for the left ear. The examiner noted the Veteran with sensorineural hearing loss in the frequency range of 6000 Hertz or higher but did not find it related to the Veteran's active-duty service. The examiner noted that there were findings of hearing loss in audio examinations but indicated that none of these examinations were during the Veteran's active-duty and also noted other examinations that showed normal hearing during the same period. The examiner stated that they could not determine why there were such fluctuations in hearing from 1981 through 2019 but indicated the Veteran has a history of outer ear issues which the examiner stated could have contributed to the fluctuations; the examiner stated that the hearing impairment was due to presbycusis or other factors that occurred after the Veteran's active service. The examiner noted that hearing loss findings at the current examination were only present in 6000 Hertz or higher and stated that if hearing loss was due to active service; the hearing loss would be present in more frequencies and at a higher severity. Although the October 2021 VA examiner gave a diagnosis of bilateral sensorineural hearing loss, based on the evidence of record, the Board finds that the Veteran's left ear puretone threshold for the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz was not 40 decibels or greater; the thresholds at three of the frequencies were not 26 or greater; and/or the speech recognition score using the Maryland CNC Test was not less than 94 percent. 38 C.F.R. § 3.385. Therefore, the weight of the evidence is against finding that the Veteran has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Without competent evidence of bilateral ear hearing loss, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Therefore, without a finding of a current disability, service connection is not warranted. The Board has considered the Veteran's statements. However, the results of testing prepared by skilled professionals are more probative of the degree of the disability because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert, 1 Vet. App. at 53-56. Diabetes Mellitus The Veteran contends his diabetes mellitus as related to service to include as due to service-connected hypertension. Review of the record shows the Veteran receiving treatment for diabetes. VA examinations in May 2019 and December 2020 diagnosed the Veteran with diabetes. As such, the Board finds the Veteran with a current disability. The Veteran's service treatment records (STRs) do not show any findings, complaints, treatments or diagnoses for diabetes. In April 2005 the Veteran denied a "history of family history of diabetes." In September 2006 laboratory testing found the Veteran's glucose levels within normal limits but the provider listed a problem for diabetes. In July 2007 the Veteran was assessed with diabetes. In February 2008 the Veteran stated that he was treated for his diabetes within a year of his discharge from service. In a September 2009 form 9 the Veteran asserted that his diabetes was incurred during service and he was diagnosed with diabetes within a year of separation. The Veteran was afforded a December 2016 VA examination. The Veteran did not provide any history on his diabetes. The examiner did not find evidence of diabetes within one year of the Veteran's discharge but did not opine on the Veteran's diabetes in relation to hypertension. The Veteran was afforded a May 2019 VA examination. The examiner opined that there was no evidence of diabetes mellitus in the Veteran's STRs or blood sugar laboratory results showing a diagnosis for diabetes. The examiner opined there was no medical literature evidence to show hypertension had a pathophysiological relational cause to diabetes; however, the examiner did not identify a baseline or provide an aggravation opinion. The Veteran was afforded a December 2020 VA examination. The examiner did not find the Veteran's diabetes incurred in or caused by the Veteran's service. The examiner noted that review of the Veteran's available laboratory work-up before, during, and within a year from the Veteran's separation did not fulfill the criteria for a diagnosis of diabetes and provided specific results and records showing the laboratory results. The examiner did not find a baseline of severity for the Veteran's diabetes and stated that the medical evidence was insufficient to support such determination. Regardless, the examiner did not find the Veteran's diabetes to be aggravated beyond normal progression by his service-connected hypertension. The examiner opined that both conditions were different disease with different pathophysiological processes. The examiner cited specific medical studies and publications that showed no findings that hypertension causes or aggravated diabetes. As the December 2020 VA examination reports provide a detailed review and examination of the Veteran's claims file, made repeated references to pertinent past records and statements consistent with the evidence of record, the Board finds that the VA examination report and medical records documenting the nature and extent of the Veteran's diabetes, to be the most probative evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the Veteran's statements and assertions that his diabetes is related to service or due to his service-connected hypertension. Certainly, he is competent to describe experiencing symptoms. To the extent that the Veteran contends that a medical relationship exists between his claimed current disability and service the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) Nevertheless, a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner's opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Here, the VA examiners considered the Veteran's statements and reports of symptoms. The examiners still found that it was unlikely that his reported diabetes were related to service or caused or aggravated by the Veteran's hypertension. The Board finds that the Veteran's opinion is outweighed by the competent opinion of the VA examiners. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). After review of the record, the Board finds the competent evidence of record is against a finding of service connection for the Veteran's diabetes. Review of the Veteran's STRs show no complaints, treatments or diagnosis relating to diabetes. Review of the medical treatment record shows the earliest competent documentation relating to the Veteran's diabetes was in 2007, years after the Veteran's separation from service. The VA examinations of record considered the Veteran's report of symptoms during intervening years but provided reasoned analysis of the case to support their opinion that the Veteran's current diabetes was not related to service or caused by or aggravated by the Veteran's service-connected hypertension. The Veteran has not submitted any other opinions to be weighed against the VA examiner's opinion. As such, the Board finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran's diabetes. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND The Board finds that remand is warranted for additional development. Concerning the Veteran's bilateral shoulder disability, the Board notes that the Veteran in a September 2006 VA examination reported the onset of his disability in 2003 during service "after travelling on bumpy roads." The examiner opined that the shoulder disabilities were not related to his back and cervical disability but did not address the Veteran's reported statement or explain why the report was not considered. The Board notes that the subsequent VA examinations and opinions regarding the Veteran's bilateral shoulder disability provide discussion on causation or aggravation; the most recent VA examination in December 2020 opined the Veteran's bilateral shoulder disability was not related to service and not caused or aggravated by the Veteran's cervical or upper extremity radiculopathy disabilities. However, it appears that examiner also failed to consider the Veteran's statement as to the onset of his disability. The matters are REMANDED for the following action: 1. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who provided the December 2020 medical opinions. The record and a copy of this remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the December 2020 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. The VA examiner should opine as to the following: a. Is it as likely as likely as not (50 percent probability or greater) the Veteran's bilateral shoulder disability had its onset during, was caused by, or is otherwise related to active service? The examiner should address the Veteran's September 2006 report of his shoulder disabilities caused by travelling on bumpy roads in service. The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 2. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.