Citation Nr: 21005745 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-34 143 DATE: February 2, 2021 ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s diabetes mellitus is due to service. 2. Throughout the appeal period, the Veteran’s audiometric testing has not indicated a compensable rating for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial compensable rating for bilateral hearing loss have not been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to February 1978. In October 2018, the Board remanded the appeal for additional development, which has been completed. The October 2018 Board remand also remanded claims for entitlement to service connection erectile dysfunction. During the pendency of the appeal, in a May 2020 rating decision the RO granted service connection for erectile dysfunction. As the Veteran has not disagreed with the rating or effective date assigned, the issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for diabetes mellitus Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he is entitled to service connection for diabetes mellitus. As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran has been diagnosed with diabetes mellitus. Specifically, a VA examiner in August 2019 a diagnosis of diabetes mellitus. With a current disability conceded, the issue before the Board becomes whether the Veteran’s disability is a result of his military service. The Veteran’s service treatment reports contain an undated report of medical history noted a history of sugar in urine. A February 1978 laboratory testing result revealed glycosuria. On separation from service in January 1978, a clinical finding of glycosuria was noted. After service, treatment records in 2006 noted a diagnosis of diabetes mellitus type 2, new onset. Thus, the Veteran was not shown to have diabetes mellitus in service or within one year following discharge from service, as such, service connection cannot be established for arthritis on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran underwent a VA examination in August 2018. Following a review of the claims file and an examination of the Veteran, the examiner opined that diabetes mellitus was at least as likely as not incurred in or caused by the elevated glucose level on separation exam during service. In support of the opinion, the examiner noted that while the service treatment records did not document a confirmed diagnosis of diabetes mellitus type II, clinical treatment notes in January 1978 reported findings of glucosuria. Likewise, in February 1978 urinalysis results showed he had glucosuria. The examiner indicated that because glucosuria was an abnormal finding, his diabetes likely began in service in 1978. The examiner explained that urine should not contain glucose because filtered glucose from tubular fluid was reabsorbed by the kidneys back into the bloodstream. If blood was present in the urine, it was deemed due to elevated blood glucose levels, most commonly due to untreated diabetes mellitus. On the day in 1978, that he was found to have glucosuria, his glucose level was high at118, when normal levels ranged between 65 to 110. This level indicated he had an impaired fasting glucose in 1978. People with impaired fasting glycemia could not able to process glucose as efficiently as they should. There was no follow-up glucose study performed in service because he was discharged, and reportedly, the Veteran did not follow up with treatment after service, which was not uncommon for people who did not have over symptoms. The examiner noted that diabetes was a chronic condition and its development was not sudden. In light of the evidence of record, the Board cannot conclude that the preponderance of the evidence is against granting service connection for diabetes mellitus. Considering the totality of the evidence and resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s diabetes mellitus is due to his service. Thus, service connection is warranted. 38 C.F.R. § 3.102. As the Board has granted service connection as directly due to service, it need not address any other theories for service connection, in this matter. 2. Entitlement to an initial compensable rating for bilateral hearing loss Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. The Veteran contends that he is entitled to an initial compensable disability rating for bilateral hearing loss. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85(h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85(b). In instances where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85(h), Table VIA. Pursuant to 38 C.F.R. § 4.86, an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or (2) a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. §§ 4.85(h); 4.86. After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85(h), Table VII. Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85(e). On VA examination in March 2011, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 20, 40, 50, and 45, and in the left ear were 40, 65, 70, and 60. The puretone threshold average in the right ear was 39 and in the left ear it was 59 decibels. Speech discrimination in the right ear was 92 percent and 88 percent in the left ear. Based on the examination findings, for the right ear, the average pure tone threshold of 39 decibels, along with a speech discrimination percentage of 92 warrants a designation of Roman Numeral I under Table I of 38 C.F.R. § 4.85. For the left ear, the average pure tone threshold of 59 decibels, along with a speech percentage of 88 percent warrants a designation of Roman Numeral III under Table I of 38 C.F.R. § 4.85. Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral I, and the left ear is Roman Numeral III, the appropriate rating is 0 percent under Diagnostic Code 6100. On VA examination in April 2014, the Veteran required hearing aids all the time. The puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 40, 55, 60, and 60, and in the left ear were 40, 60, 60, and 60. The puretone threshold average in the right ear was 54 and in the left ear it was 55 decibels. Speech discrimination in the right ear was 80 percent and 84 percent in the left ear. Under Table VI, the April 2014 audiometric findings correspond to Level IV hearing loss in the right ear and Level II in the left ear. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. On VA examination in August 2019, the Veteran reported having to turn up the volume on his television very loud. The puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 40, 50, 60, and 55, and in the left ear were 35, 55, 60, and 55. The puretone threshold average in the right ear was 51 and in the left ear it was 51 decibels. Speech discrimination in the was 84 percent bilaterally. Under Table VI, the August 2019 audiometric findings correspond to Level II hearing loss in the right ear and Level II in the left ear. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. The Board has also considered the Veteran’s service-connected bilateral hearing loss under 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment. However, based on audiometric testing results, the Veteran’s bilateral hearing loss did not fit the requirements of an unusual pattern of hearing impairment, as pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz are not 55 decibels or more, and the pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Therefore, 38 C.F.R. § 4.86 is not for application in this case. Although the severity of his hearing loss appears to have fluctuated somewhat during the appeal period, at no time did the Veteran’s bilateral hearing loss meet the criteria for the assignment of a compensable disability rating. The Board is cognizant of the Veteran’s reported difficulties in understanding speech and his need for hearing aids. Still, the “mechanical application” of the diagnostic criteria to the evidence at hand clearly establishes that the criteria for higher disability ratings are simply not met for the period at issue. The Board also notes that while treatment records also periodically document the Veteran’s complaints and/or treatment for hearing loss, nothing in these records show his adverse symptomatology to be worse than what was reported at the above VA examinations. See Colvin, supra. Likewise, the Board finds the VA examiners opinions as to the severity of his hearing loss more probative than any lay claims to the contrary because the examiners as medical professionals have greater expertise. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In summary of all the foregoing, the Board finds an initial compensable disability rating for bilateral hearing loss is not warranted all times during the pendency of the appeal because his adverse symptomatology was substantially same during this entire period. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.86, Diagnostic Code 6100; Fenderson, supra; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. Finally, the Board is aware that, under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), when evidence of unemployability is submitted during the course of an appeal of an assigned disability rating, a claim for TDIU due to that disability will normally be considered to have been raised by the record as part and parcel of the underlying increased rating claim. Here, however, the evidence of record, to include the VA examination reports, does not show, nor has the Veteran claimed, that his service-connected bilateral hearing loss renders him unemployable. More importantly, the Veteran’s TDIU claim in connection with his service connected psychiatric disorder, is still under development at the Agency of Original Jurisdiction (AOJ), under the provisions of the Appeals Modernization Act (AMA). The appeal addressed in this decision is being adjudicated under the legacy system (the old system). The AMA appeal will be addressed in a separate decision. That rating does not, and cannot, impact this decision. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.