Citation Nr: 21007182 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 18-39 638 DATE: February 8, 2021 ORDER 1. Entitlement to service connection for right ear hearing loss disability is denied. 2. Entitlement to a compensable (higher than zero percent) rating for left ear hearing loss disability is denied. REMANDED 3. Entitlement to service connection for diabetes mellitus, type II, including due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. Current right ear hearing loss disability did not manifest in service or within the first post-service year and is not shown to be causally related to service. Right ear hearing loss disability was not caused or aggravated by service-connected left ear hearing loss disability. 2. The Veteran’s hearing in the left ear is measured at a pure tone average of 53 decibels and a Maryland CNC speech recognition score of 88 percent, resulting in Level II hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right-ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to a compensable (higher than zero percent) rating for left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1961 to October 1982. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing conducted in January 2021. A transcript is of record. 1. Entitlement to service connection for right-ear hearing loss disability The Veteran contends, in effect, that he is entitled to service connection for right ear hearing loss including due to his service-connected left ear hearing loss on a secondary basis. Service connection may be established for 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 initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests an organic disease of the nervous system, such as sensorineural hearing loss, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term “chronic disease” refers to those diseases, such as hypertension, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In determining whether service connection is warranted, the Department of Veterans Affairs (VA) is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Service and post-service record do not reflect hearing loss disability in the right ear in service or within the first post-service year. Hensley, 5 Vet. App. at 157. The service records do reflect that the Veteran worked on jet engines and underwent periodic hearing conservation evaluations which inform that the Veteran was exposed to significant occupational noise but wore hearing protection “always or frequently.” (See, e.g., Veteran’s service form AF 1490, Hearing Conservation Data, dated February 8, 1965.) Service records reflect a circumstance of the Veteran experiencing sudden onset hearing loss or reduced hearing in the left ear, which subjectively recurred intermittently but improved, though with continued hearing impairment in that ear. A similar occurrence in the right ear is not documented in service records. These records do not reflect development of right ear hearing loss disability, nor do they reflect any complaints by the Veteran in service or proximate to service of right ear hearing loss disability. At the Veteran’s service retirement examination in July 1982, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 10 LEFT 15 25 25 25 35 Upon VA hearing loss examination in August 2015, the examiner found the Veteran to have sensorineural hearing loss in each ear. Regarding right ear hearing loss disability, the examiner opined that it was not at least as likely as not that the right ear hearing loss was caused by or the result of an event in military service based on normal hearing in that ear upon service separation in 1982. The examiner further explained that he had considered the Veteran’s self-reported history of having worked as a jet engine technician for 10 years between 1961 and 1982 and that for the remaining 11 years of his service, he was transferred to a medical administrative team due to a pinched nerve affecting his ability to perform engine work. The examiner considered the Veteran’s report of work exposed to jet engine noise in service, part-time work in construction prior to service, and work after service only in office jobs without noise exposure. The Veteran also denied recreational noise exposure. The Board finds the examiner’s opinion to be well reasoned and based on adequate consideration of the Veteran’s self-reported history. By the time of his separation from service the Veteran had not worked around jet engines for 11 years, and his office work then was similar to his post-service office work in that he was not exposed to significant excess noise. Right ear hearing impairment is not shown upon service separation or for many years following service discharge. In the absence of evidence of right ear hearing loss disability in service or within the first post-service year and in the absence of competent evidence directly linking right ear hearing loss disability to service, service connection for right ear hearing loss disability on a direct or first-year-post-service presumptive basis is not warranted, with the preponderance of the evidence against the Veteran meeting criteria for either of these bases of claim. 38 C.F.R. §§ 3.303, 3.307, 3.309. In his VA Form 9, Appeal to the Board, submitted in August 2018, the Veteran expressed a theory of entitlement based on “overcompensating,” or having to use the right ear more as a result of poor hearing in his left ear. However, the Veteran has presented no competent evidence to support this theory. The Veteran, as a layperson, is also without the expertise or medical competence required to address such distinct medical questions as the causes of hearing loss. The Veteran has not been shown to possess the requisite expertise or knowledge to address this type of question. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Hence, his theory of overcompensation is not supported by competent evidence to support the claim. Competent evidence has not been presented supporting service connection for right ear hearing loss disability as secondary to left ear hearing loss disability based on either causation or aggravation. Accordingly, service connection for right ear hearing loss disability on a secondary basis is also not warranted. 38 C.F.R. § 3.310. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 2. Entitlement to a compensable (higher than zero percent) rating for left ear hearing loss disability Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because varying, distinct degrees of disability may have been experienced over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Id. at 505. Also, separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability over the rating period in question. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). "Puretone threshold average," as used in Tables VI and VIA, is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz and divided by four. This average is used in all cases to determine a Roman numeral designation from Tables VI and VIA. 38 C.F.R. § 4.85(d). Table VI is used to determine a Roman numeral designation, I through XI, for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIA is used to determine a Roman numeral designation, I through XI, for hearing impairment based only on pure tone threshold average. Table VIA is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels (dB) or more, the rating specialist will determine the level designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the pure tone threshold is 30 dB at 1000 Hertz and 70 dB or more at 2000 Hertz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. § 4.86. Each ear is considered separately. 38 C.F.R. § 4.86. In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Of particular relevance to this case, Subsection (f) states that "[i]f impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I..." 38 C.F.R. § 4.85(f). The Veteran was afforded a hearing loss examination in August 2015. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average 1000 - 4000 RIGHT 30 40 50 60 60 53 LEFT 65 70 80 80 80 78 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 88 percent in the left ear. The examiner found the pure tone test results valid and the speech recognition scores appropriate for the Veteran. Sensorineural hearing loss was diagnosed in each ear. Functional impacts of the Veteran’s hearing loss were noted to include having to listen to the television and radio at increased volumes, about which family members reportedly complained. Thus, some increased difficulties with interactions may be expected due to the Veteran’s hearing loss. However, as noted, only the Veteran’s left ear hearing loss is service connected, and the Veteran’s right ear hearing must be considered non-impaired for purposes of rating the left ear. 38 C.F.R. § 4.85(f). Accordingly, applying Table VI to the Veteran’s August 2015 audiometric findings for the left ear of a pure tone average of 53 decibels and left ear speech recognition ability of 88 percent, the Veteran is found to have Level II hearing loss in the left ear. This, together with assignment of Level I hearing loss in the right ear for rating purposes, upon applying these levels in Table VII, results in noncompensable (zero percent) hearing loss for the left ear. Because the weight of the evidence is against a compensable rating for left ear hearing loss at any time during the claim period, staged ratings are not warranted. Hart, 21 Vet. App. at 509-10. Because the preponderance of the evidence is against entitlement to a compensable rating for left ear hearing loss disability, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 3. Entitlement to service connection for diabetes mellitus, type II, including due to exposure to herbicide agents, is remanded. As an initial matter, the Veteran in November 2017 submitted an authorization to release medical records from Dr. Mounir Shenouda and provided an accompanying letter from that physician in which the physician informed that he had treated the Veteran since August 2008. The physician informed of treating the Veteran including for diabetes. However, it does not appear that the VA Regional Office (RO) then followed up by requesting records from this physician in furtherance of the appealed claim for service connection for diabetes mellitus. Since these records are potentially relevant, they should be sought. VA's duty to assist under the VCAA includes helping claimants to obtain private medical records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran claims entitlement to service connection for diabetes mellitus based on exposure to herbicide agents (e.g., Agent Orange) in service. The Veteran’s service personnel records reflect that he served in Thailand at the U-Tapao Air Base from May 1967 to May 1968. These records also reflect that his duties involved work on jet engines and not work with herbicides. However, in a January 2015 correspondence, the Veteran reported performing perimeter duties at that air base. He explained that his principal duties when stationed in Thailand were in the “Jet Engine Shop” working on engine exhaust cones, and that he had very long shifts (15 to 16 hours per day) at this work to keep the aircraft flying. However, he wrote there were not enough soldiers for security duties to cover all areas of the base. Accordingly, he reported that he and other “lower ranked airmen” were assigned to security details. He wrote he performed these duties patrolling the perimeter and was exposed to any environmental toxins. At his hearing before the undersigned in January 2021, the Veteran testified that for several weeks while he was stationed in Thailand, he did security duty patrolling the perimeter of the flight line, to augment security forces. He contends that he was exposed to herbicide agents during such duties. At the hearing, the Veteran was unable to provide a precise time interval for his assigned perimeter security duties while stationed at the U-Tapao Air Base. In an August 2015 administrative determination, the RO found that a request could not be sent for potential herbicide agents exposure information from the Joint Services Records Research Center (JSRRC) because the Veteran had failed to provide a two-month window for such exposure. However, in Gagne v. McDonald, 27 Vet. App. 397 (2015), the United States Court of Appeals for Veterans Claims (Court) held that VA's duty to assist under the VCAA "requires that VA 'continue' to try to obtain records in the possession of a government agency until such a search becomes futile." 38 U.S.C. § 5103A(c)(2). Under 38 C.F.R. § 3.159(c)(2) "the Secretary must make as many research record requests as are necessary and that a search for records is 'futile' only when it becomes clear the record does not exist or is not in the possession of the custodian." Accordingly, under Gagne, VA is obligated to submit multiple requests to the JSRRC covering the relevant time window (in this case, from May 1967 to May 1968) in 60-day increments. The Court noted in Gagne that VA's duty to assist is not bound by the JSRRC's 60-day requirement and the fact that multiple record searches may burden JSRRC employees does not make those efforts futile. The only limitation to this duty provided by the Court in Gagne, other when searches are "futile," is that the duty to assist does not require unlimited searches, or "'fishing expeditions' over an indefinite period of time." Thus, additional JSRRC development is required in this case. Also at his January 2020 hearing, the Veteran testified that he had diabetes for a long time and expressed a belief that he had been found to have diabetes prior to service retirement. Service treatment records reflect treatment for conditions which were potentially effects or side-effects of diabetes mellitus. These include treatment for persistent aching calves with prolonged standing, which the Veteran reported in January 1977 as persisting for five years, decreased visual acuity including simultaneous onset of blurred vision for both near and distant vision treated in October 1974, treatment for ongoing headaches including treatment in January 1976 noting awakening with headaches and some nausea in the middle of the night, treatment for vertigo, treatment for balance issues, and a family history (noted in service) of diabetes in the Veteran’s mother, sister, and brother. Blood glucose tolerance tests were performed in October 1970 and October 1980. The October 1980 test was associated with the Veteran’s complaint of vertigo. The numbers provided appear to reflect a significant reduction in glucose tolerance between 1970 and 1980, but there is no record of interpretation of these tests in the file. A fasting blood glucose reading in January 1977 was 97 Mg/dL. The Veteran’s service retirement examination in July 1982 provides a fasting blood glucose of 117 Mg/dL, with no repeat test is performed, no follow-up evaluation, and no mention of diabetes or pre-diabetes despite the notation on that examination of a family history of diabetes in the Veteran’s mother, brother, and sister. The Veteran’s initial VA examination in January 1983 to address other claims did not include blood work testing blood glucose and did not address diabetes. A Disability Benefits Questionnaire (DBQ) addressing diabetes was completed in January 2015. The examiner diagnosed diabetes mellitus, type II, and noted that the condition was being treated with prescribed oral hypoglycemic agents. Diabetic neuropathy and retinopathy were also noted. However, the examiner provided no etiology opinion, noting simply that the diagnosis was an “old inherited [diagnosis] from pervious [primary care physician].” An examination is warranted to provide an opinion whether it is at least as likely as not that the Veteran had diabetes with onset in service or within the first post-service year, including based on the above-noted complaints and findings within service treatment records. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records and associate these with the claims file, with the authorization and assistance of the Veteran, as appropriate. 2. With the Veteran’s assistance and renewed authorization, obtain all records of treatment by Dr. Mounir Shenouda (for whom the Veteran provided an initial authorization in November 2017), to include records from August 2008 to the present. All requests, responses, and records received should be included in the claims file. 3. Send a request to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides at any time from May 1967 and May 1968 while the Veteran was stationed at U-Tapao Air Base in Thailand and while he was credibly assigned to a security detail for several weeks during his stationing, patrolling the perimeter of the air field for those several weeks. Separate responses must be provided for each 60-day period between May 1967 and May 1968. A copy of the requests to the JSRRC and the responses for each 60-day period between May 1967 and May 1968 should be included in the claims file. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the likely onset of the Veteran’s diabetes mellitus. Due to the Covid-19 pandemic, if records-based examination (including examination supplemented by telephonic examination conducted with the Veteran) can satisfactorily address all questions posed in the remand instructions, then this should be accomplished. To the extent this cannot be accomplished, then in-person examination should be conducted to the extent feasible. The claims file should be reviewed, and any necessary tests or studies should be obtained. The examiner should review and consider the service and post-service treatment and examination records. This should include review of service records reflecting in-service treatment for persistence of calf pain with prolonged standing; in-service treatment for vertigo and balance issues; in-service treatment for awakening at night with headaches and some nausea; in-service simultaneous onset of blurred vision for both near and far vision treated in October 1974; a family history noted in service of diabetes diagnosed in the Veteran’s mother, sister, and brother; glucose tolerance tests in January 1977 and October 1980; and fasting blood glucose results upon examinations in January 1977 and July 1982. The examiner should explicitly consider in-service signs and symptoms as potentially reflecting effects or side-effects of diabetes. The examiner should then opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus developed in service, was present within the first post-service year, or is otherwise causally related to service. The examiner is asked to provide a complete rationale, including providing the medical principles and evidence relied upon for the opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.