Citation Nr: 21015408 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-14 139 DATE: March 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for Parkinson's disease is denied. FINDINGS OF FACT 1. The Veteran’s currently diagnosed bilateral hearing loss is not shown to have had its onset during a period of active service, was not manifested to a compensable degree within one year following his separation from service and is not otherwise shown to be etiologically related to an in-service injury or disease. 2. The Veteran’s currently diagnosed tinnitus was not incurred during or as a result of his active service and had its onset many years after service. 3. The Veteran did not have military service in the demilitarized zone in Korea during the Vietnam Era, and cannot otherwise be presumed to have been exposed to herbicides. 4. The Veteran was not shown to have been exposed to Agent Orange during active service or during active duty for training. 5. The Veteran’s diabetes mellitus, type II, did not have its onset in service, did not manifest within one year of separation from service, and is otherwise the result of a disease or injury incurred in service. 6. The Veteran’s Parkinson’s disease did not have its onset in service, did not manifest within one year of separation from service, and is otherwise the result of a disease or injury incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for the grant of service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for establishing service connection for Parkinson’s disease have not been met. 38 U.S.C. § 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to July 1983. His overseas duty was in Germany. He had a period of active duty for training in Korea from March 29, to April 12, 1986. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2016); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2020). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including hearing loss, tinnitus, and diabetes mellitus, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a) (2020). Alternatively, under 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6) service connection may be granted for certain diseases where a veteran was exposed to a herbicide agent during active military, naval, or air service, even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e) (2020). Diabetes mellitus and Parkinson’s disease are presumptively associated with exposure to herbicides. The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran is currently seeking service connection for his hearing loss. He contends his hearing loss is a direct result of his military service as he was exposed to various hazardous military noise in the Army. In reviewing the record, the Board finds that the Veteran’s service connection claim for bilateral hearing loss should be denied. In general, entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). Hearing loss, if sensorineural in nature, and tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These are considered organic diseases of the nervous system. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss or tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For the 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). As an initial matter, the Board concedes acoustic trauma exposure in service. The Veteran has an MOS of Tank Systems Mechanic during service. Therefore, his service is consistent with hazardous noise exposure. 38 U.S.C. § 1154 (a). Second, the Veteran has a current hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385 as found by audiogram at the May 2015 and February 2020 VA examinations. Finally, with regard to causation, the Board finds that there is no evidence to support the Veteran's claim. The Veteran's service treatment records show mild hearing loss was observed at 500 Hz and 1000 Hz in the 1984 Reserve audiogram. This was on a periodic examination, and there is no indication that the Veteran was performing active duty or inactive duty for training at that time. The Veteran has been afforded VA examinations in May 2015 and February 2020. The May 2015 VA examiner diagnosed bilateral sensorineural hearing loss. However, in the negative medical opinion, she cited an October 2014 audiogram showing a low frequency hearing acuity shift consistent with conductive hearing loss. As it appeared to have been the June 1984 Reserve service audiogram showing VA defined left ear hearing loss in the lowest measured frequency (500 hertz), the Board remanded the claim for a clarifying opinion. The Veteran was afforded a VA examination in February 2020. The VA examiner diagnosed hearing loss for VA compensation purposes but opined that it was less likely than not due to noise exposure in service. The examiner provided the following rationale: Mild hearing loss is observed at 500 Hz and 1000 Hz in both ears at audiogram in 1984. However, noise-induced hearing loss is known to primarily affect mid to high frequencies which, in this claimant’s case, are well within normal limits in 1984. In 2005, the Institute of Medicine found that the most profound auditory effects of noise exposure occur immediately following exposure. This suggests that, if caused by military noise exposure, hearing loss and/or threshold shifts would have an onset during service and/or would be present at separation. Because the configuration of hearing loss observed in 1984 is inconsistent with acoustic trauma, it is therefore less likely than not that the claimant’s current hearing loss was caused by or a result of military noise exposure. Upon review of the record, the Board finds that service connection is not warranted. The record does not show lay evidence from the Veteran of a continuity of symptomatology or an onset of hearing loss in, or to a compensable degree, within a year of service. The VA examiners both opined that the shift in low frequencies is not indicative of noise-induced hearing loss or consistent with acoustic trauma. The Board does acknowledge the Veteran’s own beliefs that his hearing loss is the result of in-service noise exposure, but finds this opinion of little to no probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his hearing loss, especially in light of the VA audiologist’s conclusions that his hearing loss was not the result of service. Therefore, there is no competent and convincing evidence that the Veteran’s currently diagnosed bilateral hearing loss began during a period of active service or is otherwise etiologically related to an in-service injury or disease, on either a direct basis or a presumptive basis. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). Regarding tinnitus, at the May 2015 VA examination, the Veteran reported the onset of tinnitus 10 years prior. The examiner opined that his tinnitus was less likely than not due to service because “Veteran reports onset for tinnitus 20 years after discharge. Tinnitus which is due to military noise exposure would have an onset at or close to time of military discharge. Review of e-file does not document any complaints of tinnitus.” Upon review of the evidence of record, the Board finds that service connection for tinnitus is not warranted. The May 2015 VA examiner concluded that the Veteran's tinnitus was not due to service. The Veteran did not report the onset of tinnitus until 20 years post service. Moreover, the Board has found that the Veteran's hearing loss was not incurred during or as a result of service. Although the Veteran is competent and credible regarding his observable symptoms and their onset, the Board finds the VA opinion to be more probative regarding causation. Therefore, the preponderance of the evidence is against the claim and service connection is denied. 3. Entitlement to service connection for diabetes mellitus 4. Entitlement to service connection for Parkinson’s disease The Veteran contends that he had diabetes mellitus and Parkinson’s disease as a result of his exposure to herbicides while stationed in Korea. It is noted that the Veteran’s active duty for training in Korea was years after exposure as recognized in the regulation. See 38 C.F.R. §§ 3.307, 3.309. The Veteran’s treatment records show that he has diagnoses of diabetes and Parkinson’s. Therefore, current disabilities are shown. Regarding an in-service event, the Veteran's service treatment records show no symptoms, complaints, diagnoses, or treatment for diabetes or Parkinson’s during service. The Veteran contends that he was exposed to herbicides during his service in Korea; however, as the Veteran did not serve during a time period in which herbicides were presumed and military personnel records show the Veteran's foreign service, other than the active duty for training, was limited in Germany from 1981 to 1983. Therefore, there is no presumption of exposure to herbicides. The Veteran did not offer an alternative theory of injury or incurrence. Finally, there is no evidence of an etiology between the Veteran's disorders and service. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that the Veteran has not had a VA examination specifically for his claims of service connection for diabetes mellitus or Parkinson’s. McLendon held that an examination is required when there is (1) competent evidence of a current disability, (2) evidence establishing an "in-service event, injury, or disease," (3) and indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, the Board finds that a VA examination is not necessary. As the Board noted, the Veteran does not have confirmed exposure to Agent Orange or other tactical herbicide agent within the meaning of 38 C.F.R. § 3.307 in service, there was no in-service injury or disease related to diabetes mellitus or Parkinson’s shown in or within a year of service, and the record does not show that there may be a nexus between currently diagnosed diabetes mellitus or Parkinson’s and some incident of service. Absent evidence that establishes an in-service event, injury, or disease, the Board finds that a VA examination is not necessary for disposition of the claim. See 38 U.S.C. § 5103A (a)(2) (2012); 38 C.F.R. § 3.159 (d) (2020). Thus, there is no in-service disease, injury, or event to which the Veteran’s currently diagnosed diabetes mellitus or Parkinson’s disease could be related. Therefore, his claims of service connection are denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.