Citation Nr: 21028003 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-22 246A DATE: May 10, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to May 8, 2019 for the service-connected migraine headaches is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for radiculopathy, left lower extremity and upper extremities, is denied. Entitlement to service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. During the appeal period prior to May 8, 2019, the Veteran experienced migraines with characteristic prostrating attacks occurring on average once a month, but the evidence does not show that his migraines manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability prior to May 8, 2019. 2. The Veteran's bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has had radiculopathy or any other neurological disability of the left lower extremity and upper extremities, other than the already service connected frostbite residuals, at any time during or approximate to the pendency of the claim. 4. The Veteran's diabetes mellitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for chronic migraines prior to May 8, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for radiculopathy, left lower extremity and upper extremities, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1944 to August 1948, and from August 1950 to April 1958. The Veteran was a prisoner of war (POW) in Korea from December 9, 1950 to September 5, 1953. The matters on appeal come before the Board of Veterans' Appeals (Board) from a December 2011 rating decision by the Regional Office (RO). The Veteran provided hearing testimony before the undersigned in May 2019 and a transcript of that hearing is within the record before the Board. The Board issued a decision in April 2020 and reopened and awarded service connection for tinnitus and granted claims to reopen entitlement to service connection for vertigo and bilateral hearing loss. The Board remanded the vertigo and bilateral hearing loss service connection issues, and also remanded the matter of whether service connection is warranted for diabetes mellitus, traumatic brain injury (TBI), radiculopathy of the upper and left lower extremities, and erectile dysfunction, as well as entitlement to special monthly compensation (SMC) based upon the loss of use of a creative organ. Following the Board's remand, the RO issued a rating decision in February 2021 and awarded service connection for erectile dysfunction and awarded SMC. In March 2021, the RO issued another rating decision and awarded service connection for TBI with vertigo and also awarded a 50 percent rating for the Veteran's migraine headaches, effective May 8, 2019. Thus, the erectile dysfunction, SMC, TBI and vertigo claims were granted in full and are no longer before the Board. Further, the 50 percent assigned for migraine headaches is the maximum allowable rating for migraine headaches; thus, the matter of the appropriate rating for headaches since May 8, 2019 is no longer before the Board. The matter of whether a rating in excess of 30 percent prior to May 8, 2019 remains before the Board. Increased Rating Migraine Headaches As noted above, the Veteran contends that he is entitled to a rating in excess of 30 percent for his service-connected migraine headaches prior to May 8, 2019. He was initially awarded service connection for chronic migraines by way of an October 1968 rating decision with a 10 percent disability rating assigned. The disability rating was later increased to 30 percent effective May 19, 1969. He filed this claim for an increased rating in February 2011. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. This is the highest rating allowable under DC 8100. The currently assigned 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In August 2011, the Veteran was afforded a VA examination to assess the severity of his headaches. He reported at that time that his headaches start in the left eye area with a stabbing pain and then move to become oppressive pain in the whole head. He reported this occurring around two to three times per month, less than half of which were characterized as prostrating attacks. The examiner suggested these headaches, during prostrating attacks, would have no effect on the Veteran's usual occupation, but indicated moderate impacts on usual daily activities, such as chores, shopping, exercise, sports, recreation, and travel. At the time of the May 2019 Board hearing, the Veteran reported that he continues to have headaches that are prostrating, such that he stays at home. He reported attacks like this, which lead to him needing to go lay down, occur at least every other day. The Veteran's son confirmed this at the hearing as he had personally witnessed it. The RO later assigned the 50 percent rating effective the date of the hearing as this with the first evidence of this level of severity. The Board has reviewed the clinical records and there is no evidence of an increase in the severity of the Veteran's headaches prior to the May 2019 Board hearing. The various statements submitted by the Veteran do not include any statements discussing his headache symptoms. The clinical records show the Veteran is service-connected for headaches, but do not show he was treated for headache symptoms. The Board concludes that, prior to May 8, 2019, the evidence showed the Veteran had migraines with characteristic prostrating attacks occurring one to two times per month. This most closely approximates the level of severity contemplated by the 30 percent rating under DC 8100. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran, however, did not submit any statements within the appeal period prior to the May 2019 hearing which showed an increased level of disability. Based upon the foregoing, the Board concludes that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month throughout the appeal period prior to May 8, 2019, which corresponds to the criteria for a 30 percent rating under DC 8100. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, which was not shown in this case until the time of the May 2019 hearing. Accordingly, this claim for a rating in excess of 30 percent prior to May 8, 2019, for migraine headaches must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service Connection Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss as a result of his active service, to include the harsh conditions he was under as a POW, which involved beatings that he believes caused his later diagnosed hearing loss. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has had a current diagnosis of bilateral sensorineural hearing loss throughout the pendency of this claim as evidenced by the July 2011 VA examination, which was conducted shortly after his February 2011 claim. Sensorineural hearing loss is considered one of the "other organic diseases of the nervous system," which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran's service treatment records do not show he experienced hearing loss at any time during his active service. An undated report related to his ROTC service shows the hearing noted as normal. A May 1944 report titled "RECORD AT TIME OF REPORTING TO ACTIVE DUTY" shows normal hearing. No puretone threshold testing was used at this time, but there was also no other indication of anything other than normal hearing. The remaining clinical service treatment records do not show an indication of damage to the Veteran's ears, reports of trouble hearing or other indications of hearing loss. Following service, the Veteran was afforded a VA examination in December 1962 and the examiner explicitly noted that there was no hearing loss. A March 1968 ENT examination report shows the Veteran was reporting itching in his ears. The clinician noted a tuning fork test was used and "audition seems to be normal." There is no indication that the Veteran reported any trouble hearing at that time. Many years later, at the time of an October 1985 psychiatric evaluation, the Veteran reported difficulty with his hearing. A July 1986 VA audiometry report included Pure Tone Threshold testing. The right ear exhibited normal findings as defined by 38 C.F.R. § 3.385, but the left ear testing revealed a hearing loss disability as the auditory threshold was 40 at 4000 Hertz. The more recent July 2011 VA examination report shows a hearing loss disability as defined by 38 C.F.R. § 3.385 in both ears. Thus, it was decades after the Veteran's separation from service before his difficulty hearing began to be reported and before a diagnosable hearing loss disability was shown. The Board recognizes that the Veteran reported at the time of his May 2019 Board hearing that he remembers experiencing a loss of hearing while he was a POW. While the Board indeed sympathizes with the conditions under which the Veteran served, the medical evidence following service shows normal hearing for many years. Thus, even if the Veteran experienced an occasion of hearing loss during harsh treatment as a POW, the medical evidence does not support granting service connection for bilateral hearing loss on a presumptive basis under 38 C.F.R. § 3.309, because the permanent hearing loss disability did not manifest in service or within one year of the Veteran's April 1958 separation from active service. Service connection for bilateral hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's hearing loss and an in-service injury or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board recognizes the Veteran's main contention is that the hearing loss he developed is related to the severity of his treatment while a POW, which included beatings that he believes led to his hearing loss. The July 2011 VA examiner opined that the Veteran's bilateral hearing loss is not at least as likely as not related to in-service noise exposure. The basis for this opinion was the many years between the Veteran's active service and the initial onset of his hearing loss. As noted above, the Veteran reported at the time of his May 2019 Board hearing that he experienced hearing loss while he was a POW. The Board also recognizes the Veteran was subject to harsh conditions including beatings about the head, which has led to TBI now being a service connected condition. Thus, the Board remanded this matter for an opinion as to whether the Veteran's hearing loss was caused by those harsh in-service conditions. In October 2020, a VA audiologist and VA Chief of Otolaryngology collaborated for an opinion in this regard. The opinion recognized the Veteran entered service without any indication of hearing loss. The report also noted the Veteran was examined after he was released from his POW status and there was no indication of hearing loss. The separation examination also was without any indication of complaints related to hearing. The report also indicated the Veteran has been a patient at the VA Medical Center since 2008 and there are no indications in his records of structural abnormalities related to his ears. The report also noted the Veteran's hearing loss is symmetric and in cases of TBI, or hearing loss related to such, the hearing loss is typically unilateral in nature. The report also recognized the Veteran's hearing loss is sensorineural in nature, meaning the damage has occurred to the hearing nerve. It was then explained that in cases where hearing loss is related to head trauma, there is most often mixed or conductive hearing loss, which means there is a mechanical issue with the structure of the ear itself, such as disarticulation of ossicles. The report noted this is not the case with the Veteran's hearing loss. Based upon these factors, the two clinicians found the Veteran's hearing loss is more likely the result of presbycusis, which is hearing loss related to aging, and not the result of his recognized head trauma. While the Veteran believes his hearing loss is related to his in-service experiences, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the impact of harsh physical conditions on the human body, the ears in particular. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, this claim for service connection for bilateral hearing loss must be denied. While the Board sincerely sympathizes with the harsh conditions the Veteran experienced during his active service, the Board is not free to make its own medical determinations and must rely upon the evidence of record. In this case, the evidence does not support an award of service connection for the Veteran's bilateral hearing loss. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Radiculopathy, Left Lower Extremity and Upper Extremities The Veteran filed a claim for radiculopathy in his upper and lower extremities. The Board recognizes the Veteran is already service-connected for frostbite residuals for both lower extremities. He was also awarded service connection for a neurological deficit of the right leg associated with his service-connected disc disease with fibromyositis of the lumbar spine. The appeal as to the left lower extremity and the upper extremities remains before the Board. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability in the left lower extremity or upper extremities that began during service or is at least as likely as not related to an in-service injury or disease, or potentially associated with the Veteran's service-connected lumbar and cervical spine disabilities. The Board concludes that the Veteran does not have a current diagnosis of radiculopathy or any other neurological deficit, other than the already service-connected frostbite residuals, in the left lower extremity or the upper extremities, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). At a September 2011 VA examination related to the Veteran's cervical and lumbar spine, the examiner confirmed that there is no diagnosis of radiculopathy and no symptoms in the left lower extremity or upper extremities. The award of service connection for the right lower extremity was made considering the notation of decreased sensation to pinprick testing of the right leg, but no such findings were made relative to the other extremities. In May 2019, the Veteran's son inquired with the Veteran's VA treating physicians as to a potential diagnosis. The clinician noted the following response in the Veteran's treatment records: "No Medical diagnosis of his radiculopathy or bursitis or functional loss due to pain, stiffness, aching, scoliosis, etc. was found on the record." The Board has reviewed the other evidence within the Veteran's statements, his VA records and his private records and there is no indication of treatment for the claimed left lower extremity and upper extremity radiculopathy. While the Veteran believes he has a current diagnosis of radiculopathy, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge of neurologic impairments and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence in this case, which includes explicit statements indicating the Veteran does not have radiculopathy. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, this claim for service connection for left lower extremity and bilateral upper extremity radiculopathy must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Diabetes Mellitus The Veteran contends that he has diabetes mellitus as a result of his active service, particularly the poor diet and malnourishment he experienced while he was a POW. The Veteran has had a current diagnosis of diabetes mellitus throughout the pendency of this claim as evidenced by his VA clinical records. A July 2009 treatment note indicates he had been initially diagnosed with diabetes one year prior, and the records since that time show the ongoing diagnosis. Diabetes mellitus is also considered a chronic disease enumerated under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran's service treatment records do not show he was diagnosed with diabetes in service or experienced symptoms suggesting diabetes was manifesting itself during his active service. In fact, he does not contend the diabetes initially manifested in service. Following service, the Veteran's clinical records show he was diagnosed with diabetes in approximately 2008. Earlier records, such as a January 2002 ophthalmology record, show the Veteran reporting no history of diabetes. Thus, it was decades after the Veteran's separation from service before his diabetes manifested. This medical evidence does not support granting service connection for diabetes mellitus on a presumptive basis under 38 C.F.R. § 3.309, because the disability did not manifest in service or within one year of the Veteran's April 1958 separation from active service. Service connection for diabetes mellitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's diabetes and an in-service injury or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board recognizes the Veteran's main contention is that the diabetes he developed is related to the poor diet and malnourishment he experienced as a POW. The Board remanded this matter in April 2020 in order to obtain an opinion to address this contention. In September 2020, a VA examiner issued an opinion indicating it is less likely than not that the Veteran's diabetes is related to his POW status or otherwise related to his active service. The examiner explained that the absence or insufficient production of insulin or an inability of the body to properly use insulin is what causes diabetes, not poor nutrition, or inadequate diet during times of starvation. For this reason, the examiner found the Veteran's diabetes not likely related to his POW status, to include the poor nutrition, inadequate diet, and vitamin deficiency he experienced at that time. While the Veteran believes his diabetes is related to his in-service experiences, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the impact of harsh physical conditions including a deficient diet on the human body, the endocrine system in particular. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, this claim for service connection for diabetes mellitus must be denied. While the Board sincerely sympathizes with the harsh conditions the Veteran experienced during his active service, the Board is not free to make its own medical determinations and must rely upon the evidence of record. In this case, the evidence does not support an award of service connection for the Veteran's diabetes mellitus. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.