Citation Nr: 21030073 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-33 340 DATE: May 17, 2021 ORDER Service connection for diabetes mellitus, type II is denied. A disability rating in excess of 10 percent prior to January 22, 2015 and in excess of 40 percent from January 22, 2015 to April 8, 2019 for service-connected bilateral hearing loss is denied. A disability rating of 90 percent from April 8, 2019 to January 16, 2020 for service-connected bilateral hearing loss is granted, subject to the regulations governing the payment of monetary awards. A disability rating in excess of 90 percent beginning on January 16, 2020 for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for a heart condition is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's diabetes mellitus, type II, either began during service, within one year of separation from service, or is otherwise etiologically related to his active service. 2. Prior to January 22, 2015, the Veteran's bilateral hearing loss disability was manifested by no more than level IV hearing acuity bilaterally. 3. From January 22, 2015 to April 8, 2019, the Veteran's bilateral hearing loss disability was manifested by no more than level VIII hearing acuity in the left ear and Level VII hearing acuity in the right ear. 4. From April 8, 2019, the Veteran's bilateral hearing loss disability has been manifested by no more than level XI hearing acuity in the left ear and level X hearing acuity in the right ear. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for a disability rating in excess of 10 percent prior to January 22, 2015, and in excess of 40 percent from January 22, 2015 to April 8, 2019 for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100. 3. The criteria for a disability rating of 90 percent from April 8, 2019 to January 16, 2020 for service-connected bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100. 4. The criteria for a disability rating in excess of 90 percent beginning on January 16, 2020 for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1956 to June 1957. In February 2015, a hearing was held before a Decision Review Officer (DRO) at the Regional Office (RO). A transcript of the hearing is associated with the Veteran's claims file. In August 2018, a videoconference hearing was held before a Veterans Law Judge (VLJ). Regrettably, a complete transcript of the proceeding was unable to be produced due to an audio malfunction. Therefore, another videoconference hearing was held before the undersigned VLJ in April 2019. A transcript of that hearing is associated with the Veteran's claims file. Following the April 2019 hearing, the Board of Veterans' Appeals (Board) issued a remand in August 2019 for the issues of entitlement to service connection for a left knee condition, low back condition, heart condition, diabetes mellitus, bilateral foot condition and increased ratings for service-connected bilateral hearing loss for additional development. In a February 2020 rating decision, the RO granted service connection for a lumbosacral strain, rated 40 percent, effective June 14, 2011; service connection for bilateral foot pain, rated 10 percent, effective May 21, 2009; and service connection for left knee joint osteoarthritis, rated 10 percent effective, June 14, 2011. These represent complete grants of benefits as they pertain to those issues; therefore, they are no longer before the Board and will not be addressed further. Lastly, also in the February 2020 rating decision, the RO found that a clear and unmistakable error had been made in the prior evaluation of the Veteran's bilateral hearing loss and thus assigned 40 percent rating from January 22, 2015. At the same time, the RO also found that an increased evaluation of 90 percent was warranted for the Veteran's bilateral hearing loss, effective from January 16, 2020. The RO specifically noted that no overpayment would occur as a result of this corrective action, as the error was at the fault of VA, and as the Veteran has not disagreed with reduction in the rating undertaken in that rating decision, the Board will proceed in adjudicating the increased rating claim accordingly. 1. Entitlement to service connection for diabetes mellitus Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases, such as diabetes mellitus, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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, 1137; 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. The Veteran seeks service connection for diabetes mellitus contending he suffers from the disability as a result of his military service, including the food he was served. See April 2019 Hearing Transcript. Initially, the Board observes the Veteran's service treatment records (STRs) were found to be unavailable for review. See September 2009 Memorandum. In such circumstances where STRs are missing, VA has a heightened duty to assist a claimant in developing a claim. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). Consistent with this duty, VA medical examinations were provided for the issues denied below. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes, however, that there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, supra. In January 2020, the Veteran was provided a VA examination in which a diagnosis of diabetes mellitus was confirmed, citing a date of diagnosis in the 1990s. After examining the Veteran, the VA examiner opined it was less likely than not that the Veteran's type II diabetes mellitus was related to an in-service injury, event or disease, to include the diet and food he was served during his military service. In support of that opinion, the examiner stated that he had discussed the condition with the Veteran and even without access to his STRs, there was no injury, event, or disease reported and these three conditions would not cause diabetes. The examiner stated the Veteran's dislike of diet and foods provided was understandable, however, several years of eating these foods in service would not cause diabetes. Therefore, it was the examiner's professional opinion that the Veteran's contentions (injury, event or disease, including the diet and food he was served during his military service) were less likely as not (less than 50 percent probability) the cause or contributor to his type II diabetes mellitus. See January 2020 VA medical opinion. While the Veteran's STRs are not available for review, and therefore, a heightened duty to assist exists, the Veteran has not submitted any additional medical or lay evidence supporting his contention that he suffers from diabetes mellitus as a result of his service, including the food in which he was served. Furthermore, the January 2020 VA examiner indicated the Veteran was not diagnosed with diabetes mellitus until the 1990s, which is approximately 40 years after his separation from military service. While the Veteran believes his diabetes mellitus is a result of his military service, he is not competent to provide a diagnosis in this case or provide a medical nexus between his disability and his service as the Veteran has not demonstrated the necessary medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that the Veteran's diabetes mellitus was diagnosed many years after his separation from service. In this regard, a VA examiner also reviewed the Veteran's claims file and could find no indication of diabetes mellitus having been diagnosed in service or within one year of his separation from service. See January 2020 VA examination. This finding is supported by the evidence of record, including his VA treatment records, as both outlined and discussed above. Service connection for diabetes mellitus may still be granted on a direct basis; however, the Veteran has not indicated how his diabetes mellitus might otherwise be related to his military service outside of the food and diet he was served and the record does not raise any indication of an etiological relationship either. As explained above, the Veteran's claim for service connection for diabetes mellitus has been based entirely on his contention that the disability was a result of the food and diet he was served during his service. The January 2020 VA examiner found there was no etiological relationship between the Veteran's current diagnosis of diabetes and his food and diet in service, and there has been no additional evidence submitted to further elaborate on this contention or substantiate the claim. Accordingly, the criteria for service connection have not been met for diabetes mellitus. That is, the evidence does not show that diabetes mellitus was diagnosed in service or within a year of service and the weight of the evidence is against a finding that diabetes mellitus has existed continuously since service, or is otherwise related to service. Therefore, the claim is denied. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). 2. Entitlement to a disability rating in excess of 10 percent prior to January 22, 2015, in excess of 40 percent from January 22, 2015 to January 16, 2020 and 90 percent thereafter for service-connected bilateral hearing loss As previously discussed, the February 2020 rating decision found that a clear and unmistakable error existed in the prior evaluation of the Veteran's bilateral hearing loss. To correct the error, the February 2020 rating decision assigned a 40 percent disability rating from January 22, 2015, and a 90 percent rating beginning on January 16, 2020. A 10 percent disability rating remained assigned prior to January 22, 2015. Accordingly, the question in this case is whether a rating in excess of 10 percent is warranted prior to January 22, 2015, for the Veteran's bilateral hearing loss, and whether a rating in excess of 40 percent is warranted from January 22, 2015, to January 16, 2020, and whether a rating in excess of 90 percent is warranted from January 16, 2020. The assignment of a disability rating for hearing impairment is "derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). Specifically, organic impairment of hearing acuity is rated by using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by pure tone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85(a). Tests are conducted without hearing aids. The rating schedule establishes eleven auditory acuity levels ranging from numeric level I through numeric level XI, obtained by applying the findings to Table VI or VIa. 38 C.F.R. §§ 4.85, 4.86. The numeric designations for both ears are then applied to Table VII to derive the percentage evaluation, under Diagnostic Code 6100. In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz ) is 55 decibels (dB) or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, the rating specialist will determine the Roman numeral 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 numeral. 38 C.F.R. § 4.86. The record includes an audiological examination performed in January 2010 (received by VA in February 2010). The examination showed puretone thresholds in dB for the left ear at 1000, 2000, 3000 and 4000 Hz of 60 dB, 60 dB, 60 dB, and 60 dB respectively, with an average over those frequencies of 60 dB. Puretone thresholds in dB for the right ear at 1000, 2000, 3000 and 4000 Hz were 60 dB, 60 dB, 60 dB, and 60 dB respectively, with an average over those frequencies of 60 dB. The speech recognition score, which was noted to have been performed with the Maryland CNC word list, was 84 percent in both ears. See January 2010 Examination. A VA audiological examination was performed in October 2011. Audiological testing at the time revealed Puretone thresholds in dB for the left ear at 1000, 2000, 3000 and 4000 Hz of 45 dB, 50 dB, 55 dB, and 50 dB respectively, with an average over those frequencies of 50 dB. The speech recognition score was 90 percent in the left ear. Puretone thresholds in dB for the right ear at 1000, 2000, 3000 and 4000 Hz were 45 dB, 50 dB, 50 dB, and 45 dB respectively, with an average over those frequencies of 48 dB. The speech recognition score was 90 percent in the right ear. Functionally, the Veteran reported to the examiner that his hearing loss caused difficulty hearing in one-on-one conversations and on the telephone. See October 2011 VA examination. Another VA audiological examination was performed in January 2015. Audiological testing at the time revealed Puretone thresholds in dB for the left ear at 1000, 2000, 3000 and 4000 Hz of 50 dB, 50 dB, 65 dB, and 60 dB respectively, with an average over those frequencies of 56 dB. The speech recognition score was 38 percent in the left ear. Puretone thresholds in dB for the right ear at 1000, 2000, 3000 and 4000 Hz were 55 dB, 50 dB, 55 dB, and 60 dB respectively, with an average over those frequencies of 55 dB. The speech recognition score was 58 percent in the right ear. Functionally, the Veteran reported to the examiner that his hearing loss was "awful". He had difficulty at restaurants and with talking to friends. He reported being able to hear but not make out the words, so he responded "yes" often. See January 2015 VA examination. The Veteran testified at the April 2019 Board hearing that his hearing had worsened since his last audiological examination if he was not wearing his hearing aids. Understanding sentences was particularly challenging for the Veteran. See April 2019 Hearing Transcript. Considering the Veteran's hearing testimony, the Veteran's claim was remanded for an updated VA audiological examination which was performed in January 2020. The updated audiological testing at the time revealed Puretone thresholds in dB for the left ear at 1000, 2000, 3000 and 4000 Hz of 90 dB, 95 dB, 100 dB, and 100 dB respectively, with an average over those frequencies of 96 dB. The speech recognition score was 24 percent in the left ear. Puretone thresholds in dB for the right ear at 1000, 2000, 3000 and 4000 Hz were 75 dB, 80 dB, 85 dB, and 90 dB respectively, with an average over those frequencies of 83 dB. The speech recognition score was 40 percent in the right ear. Functionally, the Veteran reported to the examiner that his hearing loss caused difficulty hearing normal conversation when people were 3 to 4 feet away and he was unable to hear the television at 6 feet away. See January 2020 VA examination. Additionally, the record also includes VA audiological treatment records which show treatment for the Veteran's hearing loss. A February 2012 record showed the Veteran was seen for a hearing evaluation. He was last seen in October 2011 for a VA examination which revealed a mild to moderately-severe loss bilaterally (sensorineural by history) and stable when compared to test results obtained in his last VA examination. Specific audiological results did not show puretone thresholds found on examination and speech discrimination testing was not performed because it was performed within six months. Binaural aids were ordered and issued in March 2012. Maintenance on the hearing aids was performed in April 2012 and August 2013 with positive results. Additional VA treatment records show continued treatment and adjustments for his hearing aids. Applying the results of the VA audiological evaluations from the period at issue results in staged disability ratings. Prior to January 22, 2015, 38 C.F.R. § 4.86(a) for exceptional patterns of hearing impairment applies to both the right and the left ear based on the January 2010 audiological results. In applying the results from that audiological evaluations to Table VIA, a Roman number value of IV is yielded for both ears. See 38 C.F.R. § 4.85. Applying those values to Table VII, the Veteran's bilateral hearing loss disability is properly rated at 10 percent and a higher rating is not warranted for the period prior to January 22, 2015. Id. Notably, the results from the VA audiological evaluation that was conducted one year later in October 2011 yield a Roman number value of III for each ear under Table VI, which results in a noncompensable evaluation under Table VII. An exceptional pattern of hearing impairment was not demonstrated during the October 2011 VA audiological evaluation. Beginning on January 22, 2015, applying the results of the VA audiological evaluation conducted on that date to Table VI yields a Roman number value of VII for the right ear and VIII for the left ear. See 38 C.F.R. § 4.85. Applying those values to Table II, the Veteran's bilateral hearing loss disability is correctly assigned a 40 percent rating. Id. Importantly, an exceptional pattern of hearing impairment was not demonstrated during the January 2015 VA examination and thus there is no basis for the assignment of a higher disability rating. Lastly, based on the January 2020 VA audiological evaluation, the Veteran's bilateral hearing loss disability warrants a 90 percent rating. Id. Specifically, applying the results of the 2020 VA audiological evaluation to Table VI yields a Roman number value of X for the right ear and XI for the left ear. See 38 C.F.R. § 4.85. Applying those values to Table II, the Veteran's bilateral hearing loss disability is correctly assigned a 90 percent rating but not higher. In this regard, it is noted that an exceptional pattern of hearing impairment was demonstrated during the January 2020 VA audiological evaluation; however, for this audiological evaluation, it is more favorable to rate the Veteran's hearing loss under Table VI instead of Table VIA, as the application of 38 C.F.R. § 4.86(a) would result in the assignment of a 50 percent rating. The Board notes, however, that when assigning the increased 90 percent rating, the RO applied an effective date based on the date of the VA audiological examination conducted on January 16, 2020. As noted above, this examination was conducted based on the Veteran's report of worsened symptoms at the April 8, 2019 Board hearing. As the symptoms reported and demonstrated at the January 2020 VA examination align with the Veteran's hearing testimony; the Board finds that the 90 percent rating should be assigned from April 8, 2019, the date of the Board hearing, rather than the January 2020 VA examination. The record also includes a private audiological examination which was performed in January 2015. Audiological testing at the time revealed Puretone thresholds in dB for the left ear at 1000, 2000, 3000 and 4000 Hz of 50 dB, 50 dB, 65 dB, and 60 dB respectively, with an average over those frequencies of 56.25 dB. Puretone thresholds in dB for the right ear at 1000, 2000, 3000 and 4000 Hz were 55 dB, 50 dB, 55 dB, and 60 dB respectively, with an average over those frequencies of 55 dB. See January 2015 Private Audiogram. While the private 2015 audiogram includes puretone thresholds results for the Veteran's bilateral hearing loss, it does not include any speech discrimination results. Therefore, it is not suitable for use in rating the Veteran's bilateral hearing loss. See 38 C.F.R. § 4.85 ("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 puretone audiometry test."). Nevertheless, and notwithstanding the lack of speech recognition scores for rating purposes, the Board observes that the puretone thresholds reported in this audiogram is consistent with the VA audiological examinations which have been used in order to determine the Veteran's disability rating for the period at issue. Therefore, a higher disability rating is not warranted based upon this audiogram. The Board acknowledges and sympathizes with the Veteran's reports of difficulty hearing the television and difficulty in conversations both on the phone and in person. However, these complaints result from his hearing loss, which is contemplated by the schedular criteria and do not provide a basis for any rating higher than what is assigned based on application of 38 C.F.R. § 4.85. VA's rating criteria are definitive and provide for a precise result based on audiometric test results. The Veteran's subjective report of difficulty hearing under situational circumstances unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. As a result, the Board finds the results of VA audiological evaluations to be more probative than the lay evidence. A disability rating in excess of 10 percent prior to January 22, 2015, and in excess of 40 percent from January 22, 2015 to April 8, 2019 is not warranted. However, an earlier effective date of the 90 percent disability rating for service-connected bilateral hearing loss is granted as of April 8, 2019, the date of the Veteran's Board hearing testimony. A rating in excess of 90 percent thereafter for service-connected bilateral hearing loss is not warranted. REASONS FOR REMAND Entitlement to service connection for a heart condition The Veteran contends he suffers from a heart condition as a result of his military service. Specifically, at the April 2019 Board hearing, the Veteran contended he had suffered from rheumatic fever during his childhood, which caused scarring on his heart, and that this pre-existing childhood condition was aggravated by service. The Veteran noted that he experienced shortness of breath as well as noticeable difficulty with climbing and running during his service, and contended this was evidence of aggravation of the heart condition. See April 2019 Hearing Transcript. In January 2020, the Veteran was afforded a VA examination. The examiner diagnosed supraventricular arrhythmia (diagnosed in 1950s) and valvular heart disease (diagnosed in 1974). The Veteran's medical history was reported as the atrial fibrillation having been diagnosed in 1956. Prior to that the Veteran only knew that he had an irregular heartbeat. He did not find out about abnormal heart sounds and heart murmur until 1974. See January 2020 VA examination. Despite the unavailable STRs, following a conversation with the Veteran, the January 2020 VA examiner reported the Veteran "clearly stated that his atrial fibrillation did exist prior to entering military service and that [he] in fact was born with this condition." Therefore, the examiner concluded the Veteran's atrial fibrillation was a preexisting condition. After finding the Veteran's atrial fibrillation was a preexisting condition, the examiner then concluded that there was no evidence that this condition was clearly and unmistakably aggravated by service. See January 2020 VA medical opinion. While the examiner documented that as newer medications came into use, the Veteran's atrial fibrillation persisted and he was not offered an attempt to surgically correct his condition, the examiner provided no medical evidence or support of his opinion that the preexisting condition was not aggravated by his military service. Importantly, the examiner did not address the Veteran's lay contentions regarding aggravation of his heart condition as evidenced by difficulty with climbing and running during service, as well as experiencing shortness of breath. This conclusory medical opinion is inadequate, particularly in the situation where a heightened duty to assist the Veteran in his service connection claim is present. Therefore, the Board finds an addendum medical opinion is needed to obtain an adequate opinion regarding whether the Veteran's pre-existing heart condition was aggravated beyond its natural progression by his service. The matter is REMANDED for the following action: Obtain a medical addendum opinion by the January 2020 VA examiner, if available. If not available, the addendum opinion should be obtained from another appropriate VA examiner. The examiner must review the claims file. If necessary, another examination may be performed to have a conversation with the Veteran regarding his lay contentions. The examiner is asked to provide a response to the following: Did the Veteran's heart condition, which existed prior to service, at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? The examiner is asked to provide specific rationale for the medical opinions provided, including addressing the lay contentions of aggravation during service which have been advanced by the Veteran. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.