Citation Nr: 21032677 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-11 853 DATE: May 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. REMANDED Entitlement to service connection for a respiratory disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a hearing loss disability. 2. Diabetes mellitus did not manifest in service, did not manifest within an applicable presumptive period, and is unrelated to service. 3. Diabetes mellitus is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 2. Diabetes mellitus was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Diabetes mellitus is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to March 1996, which included service in Southwest Asia. In a July 2018 decision, the Board of Veterans' Appeals (Board) reopened the Veteran's claims for service connection for diabetes mellitus and a respiratory disability, then remanded those claims and his claim for service connection for bilateral hearing loss disability for further development. SERVICE CONNECTION Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a veteran must show: "(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" the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic disease, including diabetes mellitus and organic disease of the nervous system such as sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Bilateral hearing loss disability. The Veteran seeks service connection for bilateral hearing loss disability. Service connection for tinnitus has been granted as a result of noise exposure during active service. The Board concedes that the Veteran sustained noise exposure while in active service. The issue for the Board is whether the Veteran has a current hearing loss disability in either ear that began during service or is at least as likely as not related to service. The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered a disability when the auditory threshold 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. See 38 C.F.R. § 3.385. Here, the evidence of record establishes that the Veteran does not have a current bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385. Service treatment records are generally absent any complaints for or treatments for hearing loss. The January 1989 enlistment examination report shows puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 0 0 0 0 0 15 - LEFT 15 5 0 0 0 0 - A November 1991 examination report shows puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 5 0 10 10 10 20 - LEFT 10 10 0 0 10 25 - He denied a history of hearing loss on the January 1996 report of medical history at separation from service. The January 1996 separation examination showed clinically normal evaluations of the ears and ear drums. No audiometric testing results are recorded on the separation examination report. The Veteran was provided a VA hearing loss examination in January 2015. He reported an onset of hearing loss "at least 25 years ago" and reported in-service noise exposure as a paratrooper flying in helicopters and when exposed to large caliber artillery fire. Upon audiological examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 10 10 10 15 25 40 45 LEFT 15 15 10 15 25 25 35 The speech discrimination scores using the Maryland CNC word test were 98 percent in the right ear and 100 percent in the left ear. The examiner diagnosed sensorineural hearing loss in the frequency ranges of 6000 Hz or higher for both ears. The examiner provided positive nexus opinions for both ears. She explained that, given there was a threshold shift in the left ear during service, and with additional consideration that the Veteran had moderate probability for noise exposure based on his MOS and more significant noise exposure from his affiliation with aviation and helicopter units, it was at least as likely as not that the hearing loss is related to military noise exposure. May 2018 VA audiology notes show the Veteran reported a gradual decline in his hearing since being in service. Although no audiogram results were recorded, the audiologist noted that puretone air thresholds showed normal hearing through 1000 Hz in the right ear with mild to moderate hearing loss above, and normal hearing through 250 Hz in the left ear with mild hearing loss above. Word recognition ability for both ears was reported as "excellent." Another VA hearing loss examination was provided in May 2019. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 15 15 20 25 35 45 55 LEFT 20 20 20 25 30 45 45 The speech discrimination scores using the Maryland CNC word test were 94 percent in both ears. The examiner concluded that the Veteran does not currently have a hearing loss disability which would be considered disabling according to VA standards in the left or right ears. The January 2015 and May 2019 VA examination reports are highly probative as to whether the Veteran currently has a hearing loss disability. There are no other audiograms or speech recognition results of record. The Board has considered the Veteran's statements that he has a bilateral hearing loss disability. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence does not support the conclusion that there is a current bilateral hearing loss disability per VA regulation. The Veteran's lay assertions are afforded less probative weight than the VA examination reports. We note that the January 2015 examiner provided a positive opinion that the Veteran's high-frequency hearing loss is related to service. However, for VA purposes, impaired hearing will only be considered a disability when the auditory threshold 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. See 38 C.F.R. § 3.385. None of these criteria have been shown by objective medical testing. The Veteran's high-frequency hearing loss at 6000 and 8000 Hz does not qualify as a disability for VA purposes. While the Veteran has a degree of hearing loss in both ears, such has not been shown to reach the requirements outlined in 38 C.F.R. § 3.385. In other words, by regulation, he does not have a hearing loss disability for compensation purposes. Service treatment records do show changes in both ears between the entrance audiogram and the 1991 audiogram. However, there is no indication from the record that a hearing loss disability has manifest, let alone during service or within a year of the Veteran's separation from service. As such, presumptive service connection is not applicable in this case. 38 C.F.R. § 3.309 (a). For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There is no indication from the record that the Veteran has a bilateral hearing loss disability for VA purposes. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for a bilateral hearing loss disability. The preponderance of the evidence is against the claim and service connection for a left ear hearing loss disability must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Diabetes mellitus, type II. The Veteran contends his type II diabetes mellitus is due to service, including exposures to burn pits during the Gulf War and toxins while stationed at Fort Bragg, North Carolina. Alternatively, he contends diabetes mellitus is proximately due to or aggravated by his service-connected posttraumatic stress disorder (PTSD) and gastroesophageal reflux disease (GERD). See, e.g., May 2018 Board Hearing Transcript. After reviewing the evidence, the Board concludes that service connection for diabetes mellitus is not warranted. Service treatment records are absent any specific complaints, treatments, or diagnoses relating to diabetes mellitus. The January 1996 separation examination shows a clinically normal evaluation of the endocrine system and the Veteran denied a history of sugar or albumin in his urine on the January 1996 report of medical history. We note the Veteran does not generally contend that his diabetes mellitus was present during service. A VA primary care note dated May 13, 2008 shows the Veteran had elevated fasting glucose and that his physician was going to perform another fasting glucose check to establish the diabetes mellitus diagnosis. Followup noted dated May 19, 2008 reflect the diagnosis of new onset type II diabetes mellitus and a prescription for Metformin. The Veteran testified at a Board travel hearing in May 2018. The Veteran testified that heartburn and breathing stomach acid into his lungs during service contributed to him being overweight and getting diabetes. Furthermore, the Veteran's representative presented treatise evidence suggesting a link between PTSD and diabetes, and reports of toxins, chemicals, hazardous waste, herbicides, and pesticides at Fort Bragg. In a July 2018 decision the Board reopened the claim for service connection for diabetes and remanded the claim to obtain a VA examination and nexus opinion. The Board requested opinions as to whether diabetes was at least as likely as not related to an in-service event, injury, or disease, including weight gain due to acid reflux; whether diabetes began during active service or within one year after discharge from service; and whether diabetes is at least as likely as not caused or aggravated by the Veteran's service-connected, PTSD and/or hypertension. The Veteran was afforded a VA examination for diabetes in June 2019, where he reported that he was diagnosed in 2010 and that he was currently prescribed metformin, glipizide, and alogliptin. The examiner determined there was no evidence that diabetes had any relationship to military service or exposure to Gulf War hazards. The examiner explained that type II diabetes is a very common illness in the general population and is a result of glucose intolerance, particularly commonly found in overweight or obese patients. The examiner noted the Veteran is obese with a BMI of 32, and prior to 2014 was about 30 pounds heavier than he is now, and that there was no diagnosis of diabetes while in service or in the years following discharge in 1996. Addendum opinions were provided in August 2019. The examiner noted the Veteran's claim that weight gain due to GERD caused him to develop diabetes, and explained that according to UpToDate, the online medical literature database, GERD is not a known cause of weight gain and instead, if severe enough, can result in weight loss. The examiner determined that it is less likely than not that diabetes is related to an in-service injury, event, or disease, including weight gain due to acid reflux. The examiner also concluded that there was no evidence to support the notion that hypertension or PTSD either cause or aggravated type II diabetes mellitus, and determined it is less likely than not that the Veteran's diabetes is (1) caused or (2) aggravated (i.e., permanently increased in severity beyond the natural progress) by any service-connected disability including PTSD and/or hypertension. The Veteran's representative submitted two relevant medical articles and studies in support of the claim for service connection for diabetes. First, a medical article titled "Risk of diabetes in US military service members in relation to combat deployment and mental health," which concludes that symptoms of PTSD were independently associated with an increased risk of diabetes in military service members. Second, excerpts from a report titled "Soil, water, and streambed quality at a demolished asphalt plant area at Fort Bragg, North Carolina, 1992-94" We note that the Veteran was stationed at Fort Bragg during his service. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509 (1998); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). Medical articles can provide important support when combined with an opinion of a medical professional. Sacks v. West, 11 Vet. App. 317, 317 (1998). Here, the Board finds the first medical article to be of some limited value. The cited text does support a link between PTSD and diabetes mellitus. However, treatise evidence must "not simply provide speculative generic statements not relevant to the veteran's claim." Wallin, 11 Vet. App. at 514. While potentially relevant to the Veteran's claim, the article provides general information as to a relationship between the Veteran's diabetes mellitus and his service-connected PTSD. We also note that the cited study states that a "survey of 1991 Gulf War era veterans did not find a statistically significant difference in prevalence of diabetes associated with deployment in this conflict." Furthermore, this information is not accompanied by corresponding clinical evidence or a competent medical nexus opinion specific to the Veteran. The second study involving hazardous materials at Fort Bragg is of no probative value. The study indicates no relationship between diabetes mellitus and the identified hazardous materials. This treatise information is also not accompanied by corresponding clinical evidence or a competent medical nexus opinion specific to the Veteran. For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). "It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion." Id. at 304. The Board accepts the June and August 2019 VA opinions as highly probative medical evidence regarding whether the Veteran's diabetes is due to service or another service-connected disease or injury. The examiner rendered the opinions after reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and lay statements, explained why the diabetes was not related to service or his service-connected GERD and hypertension, and cited relevant research in support of his conclusions. As explained above, the examiner's conclusions are not contradicted by the treatise evidence submitted in support of the claim. Furthermore, there is no medical opinion that relates diabetes to service, to include in-service exposures, or his service-connected disabilities. The Veteran and his representative have had ample opportunity to present competent medical evidence in support of the claim and have not done so. See 38 U.S.C. § 5107 (a) (it is the claimant's responsibility to support a claim for VA benefits). The Board has considered the lay evidence of record. The Veteran is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran is not competent to address the etiological questions at issue in this claim. While the Veteran is competent to testify as to his personal experiences, he is not competent to opine as to a relationship between his diabetes mellitus and either his service or his service-connected GERD, hypertension, and PTSD. Making such a connection would require specialized education, training, or experience that neither the Veteran nor his representative have been shown to possess. See 38 C.F.R. § 3.159 (a)(2); Jandreau, 492 F.3d at 1377. There is no evidence of record beyond lay assertions that diabetes is due to service or as secondary to a service-connected disease or injury. As explained above, the treatise evidence does not support finding a nexus. The Veteran does not assert that he was told by a competent medical professional that diabetes is related to service or a service-connected disease or injury, nor does the record reflect any such nexus opinions. The lay statements as to nexus are not probative. As noted above, diabetes mellitus is a chronic disease under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). Here, there is no indication diabetes manifested during service or within one year of separation from service. Service treatment records contain no treatments or complaints relating to diabetes. At separation, the endocrine system was clinically normal, and the Veteran denied relevant symptoms. Type II diabetes was first identified in May 2008, over ten years after separation from service. The Veteran did not have characteristic manifestations of diabetes mellitus to identify the disease entity during service or within one year of separation. 38 C.F.R. § 3.303 (b). For the reasons discussed above, the Board finds that the weight of the evidence is against the Veteran's claim for service connection for diabetes mellitus. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disability is remanded. The Board remanded the claim for service connection for a respiratory disability in July 2018 to obtain new VA examinations and opinions. Specifically, the examiner was asked to opine whether the Veteran had a respiratory disability and, if present, whether it is at least as likely as not related to service (including exposure to mold and burn pits) or whether it was at least as likely as not caused or aggravated by service-connected gastroesophageal reflux disease with hiatal hernia and Barrett's esophagitis. Unfortunately, another remand is required. The new examination and opinions were obtained in June 2019. The examiner concluded that the Veteran did not currently have and had not ever been diagnosed with a respiratory condition. However, the examiner's conclusion may not be accurate. The Veteran's service treatment records show that the Veteran complained of severe shortness of breath with exertion in December 1995. January 1996 pulmonary clinic notes reflect a diagnosis of airway hyperreactivity secondary to severe GERD that "may also be affected by exercise or other nonspecific irritants" but that the "most likely etiology in this case is GERD." He was prescribed albuterol. Medical records from the period on appeal show the Veteran has had respiratory diagnoses, and that he has had a respiratory disability, during the period on appeal. We note that the diagnostic codes used to evaluate certain respiratory disorders allow for a 10 percent evaluation when DLCO is between 66 to 80 percent predicted, and the code used to evaluate asthma a 10 percent evaluation with intermittent inhalational bronchodilator therapy. See 38 C.F.R. § 4.97, Diagnostic Codes 6600, 6602 6604. As the June 2019 VA examiner noted, the Veteran's DLCO was 75 percent predicted on pulmonary function testing (PFT) in August 2014. The February 2015 VA examination report reveals DLCO was 71 percent predicted following February 2015 PFT. Furthermore, VA treatment records reflect the Veteran had aspiration pneumonia caused by GERD in July 2014, which was during the period on appeal, and reflect a history of asthma. More recently, May 2019 primary treatment records show an assessment of asthma and that the Veteran had been using his albuterol more recently. The Veteran has had a prescription for albuterol (an inhalational bronchodilator) throughout the period on appeal, and the Veteran reported in the June 2019 examination that he had used the albuterol a few days prior to the examination. An examination or opinion is not adequate when based on incorrect information. See Reonal v. Brown, 5 Vet. App. 458 (1993). Therefore, remand is necessary for an adequate medical opinion addressing whether the Veteran currently has a respiratory disorder due to service or a service-connected disability. The matters are REMANDED for the following action: 1. Return the claims file to an examiner of appropriate expertise to identify and determine the etiology of any current respiratory disability. It is left to the discretion of the examiner whether a new examination is necessary or if a medical opinion is sufficient. After reviewing the claims file and examining the Veteran (if warranted), the examiner must answer the following" (a) Identify any respiratory disorder present during service and/or during the period on appeal. (b) If the Veteran has a respiratory disorder, determine whether it is at least as likely as not (i.e. probability of 50 percent or greater) related to the Veteran's service, including exposure to mold and burn pits, and his in-service airway hyperreactivity. (c) If the Veteran has a respiratory disorder, determine whether it is at least as likely as not proximately due to, the result of, or aggravated by the Veteran's service-connected gastroesophageal reflux disease with hiatal hernia and Barrett's esophagitis. If service-connected disease or injury aggravates a respiratory disorder, the examiner should identify the percentage of disability which is attributable to the aggravation pursuant to 38 C.F.R. § 3.310. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.