Citation Nr: 21023605 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-26 003 DATE: April 21, 2021 ORDER The application to reopen the previously denied service connection claim for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for diabetes mellitus, Type II is granted. Entitlement to service connection for right and left upper extremity peripheral neuropathy, as secondary to diabetes mellitus, Type II on a causation basis, is granted. Entitlement to service connection for right and left lower extremity peripheral neuropathy, as secondary to diabetes mellitus, Type II on a causation basis, is granted. REMANDED Entitlement to service connection for a bilateral eye disability, to include senile macular degeneration, ocular hypertension, dry eye syndrome, cataracts and pseudophakia, as secondary to service-connected diabetes mellitus, Type II, is remanded. FINDINGS OF FACT 1. In a January 2009 rating decision, the RO denied service connection for bilateral hearing loss. The Veteran neither timely appealed nor submitted new and material evidence within the one-year appeal period. 2. Evidence received since this rating decision relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for bilateral hearing loss. 3. The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss is related to in-service noise exposure. 4. The evidence is at least evenly balance as to whether the Veteran has a current diagnosis for diabetes mellitus, Type II. 5. The evidence is at least evenly balanced as to whether the Veteran’s peripheral neuropathy affecting all extremities is caused by diabetes mellitus, Type II. CONCLUSIONS OF LAW 1. The January 2009 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. Evidence received since the rating decision is new and material, and the Veteran's claim for entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for bilateral hearing loss have been met. 338 U.S.C. §§ 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for diabetes mellitus, Type II have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right and left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right and left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to July 1967, including combat service in the Republic of Vietnam. This case is before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from October 2015, December 2015, and August 2018 rating decisions of the VA Regional Office (RO). The October 2015 rating decision denied service connection for peripheral neuropathy of the upper extremities, eye condition and bilateral hearing loss. The December 2015 rating decision denied service connection for peripheral neuropathy of the lower extremities. The August 2018 rating decision denied service connection for diabetes mellitus, Type II. In April 2021, the Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the claims file, but one is not necessary because either the benefits sought are being granted in full or further development is required before the claim can be adjudicated and a transcript would not alter that determination or assist in the development. Petition to reopen previously denied claim for bilateral hearing loss Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this general rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the RO denied a service connection claim for bilateral hearing loss in a January 2009 rating decision. The Veteran was appropriately notified and did not appeal this decision. New and material evidence was not received within the remaining appeals period, including VA treatment records constructively of record. Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020) Previously considered evidence included service treatment records (STRs), VA treatment records from May 2008 through July 2008 and an October 2008 VA audiology examination. The October 2008 VA audiologist furnished a negative medical opinion, and the RO found that a relationship to service was not established. Since the January 2009 rating decision, the Veteran provided additional information about his hearing loss disability. He submitted August 2015 and September 2015 lay statements from himself and his spouse. He reported that immediately after service he had a consultation with an ear, nose and throat (ENT) physician. The ENT physician diagnosed hearing loss and recommended hearing aids. The Veteran declined to use hearing aids because of his young age. His wife attested that the Veteran’s hearing noticeably worsened after he returned from Vietnam. The evidence also includes a September 2015 VA audiology examination confirming current bilateral hearing loss and a negative medical opinion. In sum, the additionally received evidence suggests that the Veteran had bilateral hearing loss starting in service, which was the basis for the previously denied service connection claim. Thus, the additional evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim. The Board thus considers it to be new and material. Reopening of the service connection claim for bilateral hearing loss is therefore warranted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. Id. In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases include diabetes mellitus, Type II and early-onset peripheral neuropathy. In order for the presumptive provision to apply for early-onset peripheral neuropathy, disease must manifest to a compensable degree within one year after the last date on which a veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307(a)(6)(ii). The Board notes that effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised to replace the term "acute and subacute" peripheral neuropathy with "early-onset" peripheral neuropathy and remove a note stating that the term "acute and subacute peripheral neuropathy" meant transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. See 78 Fed. Reg. 173, 54763 (Sept. 6, 2013). The amendment clarifies that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide agent exposure. However, the revised provisions did not change the requirement that peripheral neuropathy must have become manifest to a compensable degree within one year after a veteran's last in-service exposure in order to qualify for the presumption of service connection. Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide agent exposure. See also 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral hearing loss The below considerations are relevant to this specific claim. For VA compensation purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). Nevertheless, even when the claimed cause of a disability is established by lay testimony, this does not prevent a veteran from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Veteran’s DD Form 214 confirms that he served with an Army Artillery unit and earned Vietnam Service Medal (VNSM) and Vietnam Campaign Medal (VNCM). At the April 2021 hearing, he reported participating in combat operations while in Vietnam. His reports about combat service are consistent with service department records. The Board finds that the Veteran’s reports with the information found in his DD 214 is sufficient to show that the Veteran engaged in combat with the enemy. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996) (engagement in combat is not determined simply by reference to existence or nonexistence of certain awards or MOSs); Sizemore v. Principi, 18 Vet. App. 264, 276 (2004) (Board’s determination of combat status must be made consistent with the benefit of the doubt doctrine); 38 C.F.R. § 3.102 (the benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition); Gaines v. West, 11 Vet. App. 353, 359 (1998) (evidence submitted to support a claim that a veteran engaged in combat may include the veteran’s own statements). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). Nevertheless, even when the claimed cause of a disability is established by lay testimony, this does not prevent a veteran from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). STRs are silent for complaint, treatment or diagnosis of hearing loss. A July 1967 separation examination noted normal ears and an audiogram showed 0 decibel hearing acuity for both ears in all frequencies tested. In the accompanying report of medical history, the Veteran denied hearing loss or running ears. May 2008 VA audiology clinic records showed that the Veteran had a consultation for bilateral hearing loss. He reported a history of military and recreational noise exposures. He denied occupational noise exposure. Audiogram confirmed bilateral hearing loss. Hearing amplification was recommended. In October 2008, the Veteran had a VA audiology examination. The audiologist noted a noise exposure history from Vietnam combat service with heavy artillery type noise exposures. The Veteran denied occupational noise exposure and for recreational noise exposure a prior history of hunting was reported. Audiogram confirmed bilateral hearing loss for both ears. The audiologist diagnosed normal to moderately severe sensorineural bilateral hearing loss. She furnished a negative medical opinion citing normal hearing at separation. In August 2015, the Veteran’s spouse reported that she witnessed a substantial difference in the Veteran’s ability to hear when he returned from Vietnam. She remembered that the Veteran had a medical consultation where he was found to have hearing damage and advised to wear hearing aids. In September 2015, the Veteran reported that he noticeable hearing impairment when he returned from Vietnam. He had a medical consultation that confirmed bilateral hearing loss and was advised to wear hearing aids. Since then, his hearing had worsened. He was unable to obtain a copy of the private medical records for his hearing consultation immediately after separation. He asserted that the in-service artillery fire caused his hearing loss. In September 2015, the Veteran had another VA audiology examination. Audiogram confirmed bilateral hearing loss. The audiologist diagnosed bilateral sensorineural hearing loss and furnished a negative medical opinion. She cited the normal audiogram from service. She noted the Veteran’s reports about private treatment immediately after service but indicated that without these records she could not make a favorable determination. For the following reasons, service connection is warranted for bilateral hearing loss. The Veteran has been diagnosed with a bilateral hearing loss disability as defined by VA regulations. 38 C.F.R. § 3.385; September 2015 VA audiology evaluation. His reports raise the issue of whether his hearing loss is an acoustic injury incurred during combat service. Hearing loss is readily observable, and the Veteran is competent to report such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). He reports in-service noise exposure from artillery fire and hearing loss symptoms dating to service. Service department records support his account of acoustic trauma from working under combat conditions in Vietnam as an artillery crewmember. Given the Veteran’s history of combat service, particular weight must be given to his lay reports of military acoustic injury. Reeves, 682 F.3d at 999. There is no positive medical opinion. However, the fact that the Veteran’s combat reports establish acoustic trauma, do not prevent him from also invoking the section 1154(b) rules in order to show that he incurred hearing loss while in service. Id. For these reasons, the Veteran’s reports about a relationship to service for bilateral hearing loss are entitled to probative weight. The Board has considered the August 2008 and September 2015 VA medical opinions. Both VA audiologists summarily dismissed a relationship to service based upon STRs. They did not account for the Veteran’s competent and credible reports about hearing loss symptoms dating to service and circumstances of combat service. The Board does not find either medical opinion probative to weigh against a relationship to service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). For the foregoing reasons, the Board finds that a relationship to service for bilateral hearing loss is in a state of relative equipoise. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (lay evidence may be sufficient in and of itself to substantiate a service connection claim); 38 U.S.C. § 1154(b). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Diabetes mellitus, Type II and peripheral neuropathy, bilateral upper extremities and bilateral lower extremities The Board will consider these claims together due to the common factual background. Service department records reflect that the Veteran served in Vietnam during the Vietnam era and is entitled to a presumption of herbicide agent exposure. Service treatment records (STRs) do not show any complaints or treatment for diabetes or neuropathy. The July 1967 separation examination report showed that the Veteran’s endocrine and upper and lower extremities were clinically evaluated and deemed to be normal. Urinalysis was negative for sugar. December 2013 VA primary care records included complaints about tingling and coldness sensations affecting both feet. April 2014 VA neurology clinic records noted symptoms of numbness, tingling and burning in both legs and hands. The Veteran had a remote history of alcohol use and was not known to have diabetes. An electromyogram (EMG) was performed. It showed length-dependent sensory polyneuropathy. It did not show evidence of left lumbosacral radiculopathy. July 2014 VA primary care records reflected that the neurological disturbances were suspected to be caused by B12 deficiency. Treatment was planned accordingly. September 2015 VA treatment records showed that the Veteran found B12 injections to be ineffective. In October 2015, the Veteran had a VA peripheral neuropathy examination. The physician diagnosed bilateral upper and lower extremity peripheral neuropathy. Physical findings were detailed. The April 2014 EMG report was noted. The physician furnished a positive medical opinion for peripheral neuropathy affecting the bilateral upper and lower extremities. He cited in-service Agent Orange exposure as the cause of disability. In July 2018, the same physician from the above October 2015 VA peripheral neuropathy examination furnished a positive medical opinion for diabetes mellitus, Type II and peripheral neuropathy. He stated that the Veteran had Agent Orange induced Type II diabetes and developed peripheral neuropathy secondary to Type II diabetes. He cited elevated HbA1c and fasting blood sugars. He reported that peripheral neuropathy is a known complication of Agent Orange induced Type II diabetes. In an addendum also issued in July 2018, the physician affirmed his previously stated medical opinion. He noted that the guidance concerning a link between peripheral neuropathy and Agent Orange was expanding. He explained that no one knows when the Veteran’s symptoms started, and the Veteran may not have had access to adequate healthcare to detect such problems. For diabetes, he noted that studies from May 2013 and March 2014 were suggestive of diabetes, and it should have been evaluated further, particularly when peripheral neuropathy was diagnosed. He stated that diabetes was often discovered accidentally when complications appear. He concluded that he believed the Veteran’s peripheral neuropathy was directly related to Agent Orange and was certainly related to Type II diabetes. For the following reasons, service connection for diabetes mellitus, Type II and peripheral neuropathy for all extremities is warranted. Since the Veteran served in Vietnam within the applicable period, he is entitled to a presumption of herbicide agent exposure. 38 C.F.R. § 3.307(a)(6)(i). The issue is whether there is a current diabetes mellitus, Type II diagnosis to warrant presumptive service connection for a disease associated with exposure to certain herbicide agents, and if so, whether peripheral neuropathy is secondary to diabetes mellitus, Type II. The July 2018 VA medical opinion is persuasive evidence establishing a current diagnosis for diabetes mellitus, Type II and relating peripheral neuropathy affecting both upper and lower extremities to it. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (setting forth factors to be considered in assigning probative weight to an opinion). The July 2018 VA medical opinion is written by a physician who is competent to make medical determinations. He provides a convincing explanation as to why a diabetes diagnosis may have been overlooked in treatment records and why it is an appropriate diagnosis. He definitively relates peripheral neuropathy as a diabetes manifestation. There is no conflicting medical opinion. The evidence weighing against the claim consists of the fact that the Veteran has had regular VA treatment for many years but did not receive a diabetes diagnosis. Given the July 2018 VA medical opinion, the absence of diagnosis is explained and negative inferences from prior medical records cannot be used as evidence that preponderates against the claim. Given the above facts and circumstances of this case, the evidence is at least evenly balanced as to whether the Veteran currently has a diagnosis of diabetes mellitus, Type II and associated peripheral neuropathy affecting both upper and lower extremities. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for diabetes mellitus, Type II, bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Given the fully favorable dispositions, further consideration of alternative theories of entitlement is not needed. REASONS FOR REMAND Entitlement to service connection for a bilateral eye disability, to include senile macular degeneration, ocular hypertension, dry eye syndrome, cataracts and pseudophakia, and as secondary to service-connected diabetes mellitus, Type II, is remanded. The Veteran has not been afforded an examination in connection with this claim. The medical evidence confirms that the Veteran has several ocular disorders, and he is now service-connected for diabetes. Diabetes is a well-known cause of vision loss. https://www.uptodate.com/contents/diabetic-retinopathy-prevention-and-treatment?search=retinopathy%20diabetic&source=search_result&selectedTitle=1~150&usage_type=default&display_rank=1 (last visited April 19, 2021). The record does not contain sufficient information to make a decision on the claim. The issue of secondary relationship is a complex medical question, and the medical records do not make specific reference to diabetes for any of the ocular disorders. Therefore, the Veteran should be afforded an appropriate examination upon remand to assess the nature of his claimed eye disability and diabetes and appropriate medical opinions should be obtained as to whether these disabilities are caused or aggravated by now service-connected diabetes mellitus, Type II. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). This matter is REMANDED for the following action: Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s current ocular disorders. The claims file and a copy of this remand must be made available to the clinician for review, and he or she must specifically acknowledge receipt and review of these materials in any reports generated. If the clinician determines an examination is needed for the medical opinion, such examination should be scheduled. The clinician must opine whether any ocular disorder experienced by the Veteran since approximately August 2015 is at least as likely as not is (a) caused by service-connected diabetes mellitus, Type II or (b) aggravated by service-connected diabetes mellitus, Type II. The medical opinion must clearly address both causation and aggravation elements for this claim. The clinician must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.