Citation Nr: 21028670 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 10-20 760 DATE: May 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss (BHL) is denied. Entitlement to service connection for type II diabetes mellitus is granted. REMANDED Entitlement to a rating in excess of 20 percent, prior to August 9, 2017 and in excess of 40 percent from August 9, 2017, for lumbar spine intervertebral disc syndrome (IVDS) and degenerative disc disease (DDD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 11, 2014 is remanded. FINDINGS OF FACT 1. The Veteran does not have BHL for VA purposes. 2. The Veteran's type II diabetes mellitus is aggravated by his service connected back condition. CONCLUSIONS OF LAW 1. The criteria to establish service connection for BHL have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria to establish service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1994 to May 1997 and from September 2006 to August 2007. The Veteran appealed a July 2008 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in November 2016. A transcript is of record. In April 2017 and September 2018, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives regarding BHL and diabetes. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A veteran is entitled to the Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. BHL Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 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. During the February 2010 and August 2017 VA examinations, the Veteran did not register audiometric testing results exhibiting BHL for VA purposes. There are no additional audiometric testing results during the period on appeal that are adequate for VA rating purposes. Therefore, the evidentiary record does not show that the Veteran suffers from BHL for VA purposes. The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran has hearing loss for VA purposes cannot be determined by mere observation alone. This requires specialized training and audiometric testing. The Board finds that determining the etiology of the Veteran's hearing symptoms is not within the realm of knowledge of a non-expert, and concludes that his opinion in this regard is not competent evidence and therefore not probative of whether he has hearing loss for VA purposes. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). As such, without a current disability, the Veteran lacks the evidence necessary to substantiate his claim for service connection. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board denies the Veteran's claim of entitlement to service connection for BHL. 2. Diabetes The earliest indication of diabetes in the Veteran's medical records is in 2003. See September 2003 VA treatment records; November 2006 service treatment records (STRs). The Veteran entered service without any diabetes related issues. See December 1993 STRs. As such, the Board finds the Veteran sound as to his first period of active service. Nevertheless, the Veteran is diagnosed with type II diabetes. See September 2015 VA examination report. The Veteran is service connected for a lumbar spine condition with IVDS and DDD. The Veteran has undergone various back surgeries. See August 2017 VA examination report. The Veteran has claimed that his diabetes worsened after his back surgeries. See August 2008 notice of disagreement (NOD); November 2016 Board Hearing Tr. at 3. A February 2020 VA opinion stated, "significant alterations in glucose metabolism occur during periods of heightened stress such as major surgery." The February 2020 VA opinion concluded "there is adequate research literature that major surgery, trauma and sepsis can affect glycemic control" and that after reviewing the Veteran's claim, it is "more likely the Veteran's diabetes mellitus is caused by or aggravated by his service-connected lumbar spine surgeries." An addendum opinion was completed in September 2020. However, the September 2020 opinion focused on the relationship of diabetes impacting intervertebral disc degeneration (IVDD). Nevertheless, the September 2020 opinion still indicated there is a relationship between DM and IVDD and alluded to the fact the Veteran started insulin therapy after his 2015 back surgery in 2019. Overall, the Board finds the evidence is in equipoise as to whether the Veteran's diabetes is secondary to his service-connected back condition and specifically secondary to the various surgeries received for his back condition. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's diabetes was aggravated by his service-connected back condition. Accordingly, service connection for type II diabetes mellitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Back The September 2018 Board decision specifically asked in the remand instructions for the VA examiner to note when pain begins. However, the January 2020 VA examiner made no indication of what point the Veteran's pain begins. Importantly, the United States Court of Appeals for Veterans Claims (Court) issued a recent decision in Chavis v. McDonough, Vet. App. No. 19-2928 (April 16, 2021) and found that a rating based on ankylosis is permitted if the Veteran's functional loss is consistent with that contemplated by ankylosis. Therefore, the Veteran may be entitled to a higher than 40 percent rating if the described immobilization and limitation in range of motion (ROM) amounts to such limitation as contemplated by ankylosis. As such, the prior Board remand instruction of noting at what point pain begins allows for a more accurate determination in whether the Veteran's functional limitations amount to that contemplated by ankylosis. Therefore, a new VA examination is required. 2. TDIU The Veteran's claim for entitlement to TDIU prior to February 11, 2014 is premised in part on the severity of his service-connected back condition. As such, the issue of TDIU is inextricably intertwined with that issue. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Board has granted service connection for diabetes in the instant decision. This condition has yet to be rated by the AOJ. As the initial rating assigned for this condition could significantly impact the outcome of the TDIU claim, the Board must defer adjudication of the TDIU claim until after the AOJ has had the opportunity to assign an initial rating for the disability the Board has service connected herein. The matters are REMANDED for the following action: 1. Assign an initial rating for the Veteran's diabetes. 2. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his back condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 3. Thereafter, schedule the Veteran for an examination of the current severity of his back condition. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran's condition and discuss the effect of the Veteran's condition on any occupational functioning and activities of daily living. The examiner is to note at what point the Veteran's pain begins. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 4. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. ERIC MINE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, Associate 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.