Citation Nr: 21077645 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 15-17 762 DATE: December 30, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is denied. Service connection for posttraumatic stress disorder (PTSD) with anxiety and depression is granted. Service connection for coronary artery disease and ischemic heart disease is denied. From July 9, 2006, to July 21, 2014, an increased rating of 40 percent for diabetes mellitus is granted. Since July 21, 2014, a rating in excess of 40 percent for diabetes mellitus is denied. REMANDED Entitlement to service connection for hypertensive heart disease, hypertension, syncope, aortic stenosis, and mitral and tricuspid regurgitation is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss and tinnitus disabilities began during the Veteran's active military service, within a year of his discharge, or are otherwise related to an in-service injury or disease. 2. The Veteran's PTSD is etiologically related to a stressor that occurred in service. 3. From July 9, 2006, to July 21, 2014, the Veteran's diabetes mellitus required insulin, a restricted diet, and regulation of activities. 4. Since July 21, 2014, the Veteran's diabetes mellitus has not resulted in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. 5. The Veteran has not been diagnosed with coronary artery disease or ischemic heart disease. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria are not met for entitlement to service connection for bilateral tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria are met for entitlement to service connection for PTSD with anxiety and depression. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria are not met for entitlement to service connection for coronary artery disease or ischemic heart disease. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. From July 9, 2006, to July 21, 2014, the criteria for a higher 40 percent rating for diabetes mellitus are met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.159, 3.321, 4.119, Diagnostic Code (DC) 7913. 6. Since July 21, 2014, the criteria for a rating higher than 40 percent for diabetes mellitus are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.159, 3.321, 4.119, DC 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1970 to October 1971. Service Connection 1. Service connection for bilateral hearing loss is denied. 2. Service connection for bilateral tinnitus is denied. The Veteran contends that his bilateral hearing loss and tinnitus are the result of repeated exposure to excessively loud noise and consequent injury (acoustic trauma) during his military service. However, the Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss including meeting the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered a ratable disability for VA compensation purposes, and a diagnosis of tinnitus, the preponderance of the evidence weighs against finding that his bilateral hearing loss or tinnitus began during his service, or within a year of his discharge or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (d), 3.307, 3.309(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran contends that his hearing loss and tinnitus were caused by exposure to loud noise by way of tanks, aircraft, and explosives while stationed along the Demilitarized Zone (DMZ) while stationed in Korea. In September 2018, a VA examiner examined the Veteran, reviewed the file, and concluded that it was less likely than not that his bilateral hearing loss and/or tinnitus was etiologically related to his service. The examiner reviewed the audiometric testing in service and concluded the results did not indicate any permanent positive threshold shift while in service or at separation from service. The examiner noted that absent any indication of hearing decrease or tinnitus at separation of service, or indication of decreased hearing in service, there was no indication of auditory damage in service. Therefore, it was less likely than not that the Veteran's hearing loss or tinnitus is related to service. The VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board resultantly finds that the most probative and, therefore, most persuasive evidence of record weighs against the Veteran's claims for service connection for bilateral hearing loss and tinnitus. In so finding, the Board places a lot of probative weight on the September 2018 VA examiner's opinion because, although the Veteran has generally contended that his hearing loss and tinnitus are related to his service, he has provided no statements specifically supporting this assertion, such as explaining how long he has experienced hearing loss or whether he noticed hearing loss or tinnitus during or upon his separation from service. Further concerning this, on 2018 VA examination, the Veteran reported the onset of tinnitus to about sometime in the 19990s, so many years following service separation. Therefore, there is little to no evidence to refute the VA examiner's opinion. Moreover, the Veteran had not demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical nexus opinion regarding the determinative issue of causation. He is competent to report his hearing difficulties, but his lay contentions as to etiology are outweighed by the aforementioned medical opinion rendered by a trained medical professional and based upon a claims file review and an examination of him, with full consideration of his lay contentions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Furthermore, the Board also finds that presumptive service connection is not warranted because there is no evidence the Veteran had bilateral sensorineural hearing loss to a compensable degree within one year of separating from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Since, for these reasons and bases, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and these claims of entitlement to service connection for bilateral hearing loss and tinnitus are denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for PTSD with anxiety and depression is granted. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran contends that he suffers from PTSD related to a stressor in service when he witnessed a Korean civilian burn in a house fire and he was unable to rescue the civilian even after attempting to do so by collecting water and throwing it on the flames. Shortly thereafter, he witnessed a hotel fire. The Board finds that service connection for PTSD with anxiety and depression is warranted. On September 2018 VA examination, after interviewing the Veteran and conducting a mental health assessment, the examiner concluded that the Veteran suffered from PTSD based upon his reported stressor as described above. Similarly, the Veteran has received treatment for his symptoms both by the VA and privately, and these records show that he has been diagnosed with PTSD based upon the reported in-service stressor. Thus, although the in-service stressor is not verifiable based upon the RO's research and determination, there is still credible evidence that the in-service stressor occurred. In fact, the September 2018 VA examiner found the in-service stressor to be credible, as the examiner provided a diagnosis of PTSD based upon that stressor. Given such, the Board finds that service connection for PTSD with anxiety and depression is warranted. 4. Service connection for coronary artery disease and ischemic heart disease is denied. The Veteran contends that he suffers from coronary artery disease and/or ischemic heart disease that is etiologically related to his exposure to herbicides while in service. However, a review of the treatment records, to include both VA and private treatment records, does not reflect a diagnosis of either of these disabilities. The Veteran has been diagnosed with other cardiovascular disabilities that are being further developed on remand, however, these particular disabilities have not been diagnosed. Therefore, as the first element of service connection, that of a disability, has not been shown, the elements of service connection are not met and the claims for service connection for coronary artery disease and/or ischemic heart disease must be denied. Increased Rating 5. From July 9, 2006, to July 21, 2014, an increased 40 percent rating diabetes mellitus is granted. 6. Since July 21, 2014, a rating in excess of 40 percent for diabetes mellitus is denied. First, the Board clarifies that while this issue was previously framed as a claim for an earlier effective date for the 40 percent rating for diabetes mellitus, the Board finds that it is a staged rating claim, and has rephrased it as such. The Veteran's diabetes mellitus is rated as 20 percent disabling prior to July 21, 2014, and 40 percent disabling thereafter. Under DC 7913, a 20 percent rating is warranted when the diabetes mellitus requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. First, the Board finds that a higher 40 percent rating is warranted for the Veteran's diabetes mellitus prior to July 21, 2014. Specifically, in April 2015, the Veteran's treating private physician stated that since he began treatment for his diabetes in 2004, he has relied on oral medications, a restricted diet, and regulation of activities with avoidance of strenuous occupational and recreational activities. The Board notes that the Veteran was initially assigned the higher 40 percent rating based upon a July 2014 letter from the same physician documenting restriction of activities since 2012. Because the April 2015 clarifies the question requested on remand, that of how long the Veteran's activities have been restricted due to his diabetes mellitus, the Board finds that the 40 percent rating is warranted throughout the appeal period. The Board notes that the assignment of this higher rating is based upon the benefit of the doubt standard, as all VA examinations obtained during the appeal period, to include in July 2014, March 2015, and December 2019, actually show the opposite finding. On all three VA examinations, it was determined that the Veteran's activities were not regulated due to his diabetes mellitus. The Board finds that a rating higher than 40 percent for the Veteran's diabetes mellitus is not warranted at anytime during the appeal period. While the April 2015 private physician stated that the Veteran did experience episodes of ketoacidosis or hypoglycemic reactions but that these reactions and episodes were managed by his spouse who is a registered nurse, the evidence still does not contain any medical records to document that the Veteran has experienced episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. Rather, the VA examinations referenced above document that the Veteran visited a health care professional less than twice a month for these symptoms and had not been hospitalized for these diabetic complications. In that regard, a review of the many VA treatment records and private treatment records dated throughout the appeal period also does not reference that the Veteran has experienced such severe episodes of ketoacidosis or hypoglycemic reactions, either at home or under the care of a medical provider. Thus, the criteria as contemplated by the next higher rating is not shown in this instance, and therefore a higher rating is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for hypertensive heart disease, hypertension, syncope, aortic stenosis, and mitral and tricuspid regurgitation is remanded. The Veteran contends that these cardiovascular disabilities are either etiologically related to exposure to herbicides while in service or are proximately due to his service-connected diabetes mellitus. To date, a VA examination and opinion has not been obtained with regard to this claim. Given the Veteran's contentions and a review of the evidence of record, such should be obtained on remanded. 2. Entitlement to service connection for OSA is remanded. 3. Entitlement to service connection for COPD is remanded. The Veteran contends that his OSA and COPD are etiologically related to his diabetes mellitus and associated insulin resistance. Although opinions have been obtained as to that theory of entitlement, an opinion has not been obtained as to whether his obesity could be considered a link, or intermediary step, between his service-connected diabetes mellitus and his OSA and COPD. Therefore, although the Board regrets the additional delay with regard to these issues, remand is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for to determine the etiology of the Veteran's diagnosed cardiovascular disabilities. The examiner must review the claims file. The examiner is asked to provide a response to the following: a) Is it at least as likely as not that the Veteran's hypertensive heart disease, hypertension, syncope, aortic stenosis, and mitral and tricuspid regurgitation was caused or aggravated by exposure to herbicides while in service? With regard to hypertension, the examiner should consider and consider and comment on the November 2018 National Academy of Science (NAS) study that promoted hypertension from the "limited or suggestive" to "sufficient" category for association with herbicides. See Veterans and Agent Orange: Update 11 (2018). b) Is it at least as likely as not that the Veteran's hypertensive heart disease, hypertension, syncope, aortic stenosis, and mitral and tricuspid regurgitation was caused or aggravated by his service-connected diabetes mellitus? 2. Schedule the Veteran for a VA examination for to determine the etiology of the Veteran's COPD and OSA. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's service-connected diabetes mellitus caused or aggravated his COPD and/or OSA? When providing these requested opinions, the examiner must also provide an opinion on whether the Veteran's documented obesity was caused by his service-connected diabetes mellitus and, if so, whether his obesity in turn served as an "intermediary step" to the development of his COPD and OSA? JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.