Citation Nr: 21040974 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 19-02 806A DATE: July 7, 2021 ORDER New and material evidence has been presented and the claim for entitlement to service connection for diabetes mellitus, Type II is reopened. Entitlement to service connection for diabetes mellitus, Type II is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for syphilis is denied. REMANDED Entitlement to service connection for a vision disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. New and material evidence has been received since the final March 2013 rating decision denying entitlement to service connection for diabetes mellitus, Type II. 2. The preponderance of the evidence is against finding that diabetes mellitus, Type II began during active service or is otherwise etiologically related to service. 3. The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss began during active service or is otherwise etiologically related to service. 4. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to in-service noise exposure. 5. The preponderance of the evidence is against a finding that the Veteran has had syphilis or residuals thereof at any point during the appeal period. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for diabetes mellitus, Type II is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for diabetes mellitus, Type II have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for syphilis have not been met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in November 2015 and December 2016 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a January 2021 videoconference hearing. A transcript of that hearing is associated with the claims file. 1. Whether new and material evidence has been presented to reopen the claim for entitlement to service connection for diabetes mellitus, Type II The Veteran's claim for entitlement to service connection for diabetes mellitus, Type II was initially denied in an April 2005 rating decision because the RO did not find evidence of a nexus between the Veteran's diagnosed diabetes mellitus and his period of active service or that the disability developed within 1 year of his discharge from service. Thereafter, in March 2013, the RO did not find that the Veteran presented new and material evidence to reopen the claim. The Veteran did not appeal this decision or submit new and material evidence within 1 year. Accordingly, the March 2013 rating decision is final. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Since the March 2013 rating decision, new evidence has been added to the claims file. Specifically, the Veteran submitted buddy statements from his friends and family members indicating that he was diagnosed with diabetes mellitus in 1983, during his active service, by a civilian doctor. They also recalled him taking medication for such during service. The Board finds this evidence is both new and material, sufficient to reopen the Veteran's claim for entitlement to service connection. To this extent only, the claim is granted. Service Connection As an initial matter, the Board notes that the Veteran's service treatment records are unavailable. Efforts by the RO to obtain service treatment records from all potential sources were unsuccessful. See April 2005 VA Memorandum Formal Finding on the Unavailability Service Treatment Records. The Board recognizes it has a heightened duty to consider the application benefit-of-the-doubt rule when service records are unavailable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Destruction or loss of service treatment records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as diabetes mellitus, bilateral hearing loss, and tinnitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if "the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage v. Gober, 10 Vet. App. 488, 498 (1997). 2. Entitlement to service connection for diabetes mellitus, Type II The Veteran asserts that his diabetes mellitus, Type II had its onset during his period of active service. As noted above, the Veteran testified that he was first diagnosed with diabetes mellitus, Type II by a civilian doctor while he was still in service. The Board reiterates that the Veteran's service treatment records are unavailable for review. The Veteran submitted buddy statements from friends and family members who noted that they witnessed him going to the civilian doctor for diabetes mellitus and recalled him taking medication during service. They further noted that the Veteran was seen by a civilian doctor because he was afraid of getting discharged from the military if they knew of his medical problems. The Veteran submitted an October 1988 report of medical examination for his commission to the Army National Guard. This examination noted that the Veteran's urinalysis was negative for sugar. Post-service, the first evidence of treatment for symptoms diagnosed as diabetes mellitus is dated in January 2001. At that time, the Veteran indicated he was not taking medication and the diabetes mellitus was described as "new onset". The Veteran further related a family history of diabetes mellitus. In February 2010, upon establishing treatment with Dr. G.S., the Veteran reported a 4 year history of diabetes mellitus and was noted to be taking insulin at that time. The only nexus evidence in favor of his claim consists of lay statements made by the Veteran and his friends and family. To the extent the Veteran reports he manifested symptoms of diabetes mellitus during service, as a lay person, he is competent to report having experienced sweating, nausea, and pain. However, he is not competent to provide a diagnosis in this case or determine that any particular symptoms were manifestations of diabetes mellitus. This issue is medically complex, as it requires medical training and interpretation of diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, the Veteran's current recollections are not consistent with his earliest available treatment records. The Board has considered the Veteran's testimony that treatment records from the civilian doctor who diagnosed him during service are unavailable. However, the Board finds the lay statements regarding the Veteran's diabetes mellitus diagnosis in service are outweighed by the medical evidence of record. Specifically, the Veteran testified that he began taking insulin in 1986. However, in January 2001, the Veteran denied taking medication. Further, in 2010, the Veteran reported only a 4-year history of diabetes mellitus. The Board finds that statements made to treatment providers are considered especially truthful as they are made for the purposes of obtaining appropriate medical treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Further, the current recollections are subject to the vagaries of memory due to the passage of time, several decades in this case, and are not consistent with the Veteran's own documented statements in the medical evidence. See, e.g., Seng v. Holder, 584 F.3d 13, 19 (1st Cir.2009) (notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). Consequently, the Board gives more probative weight to the objective medical evidence of record. In sum, the most probative evidence establishes that diabetes mellitus, Type II was not manifested during service and is not otherwise etiologically related to service. Accordingly, the claim for service connection for diabetes mellitus, Type II is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for bilateral hearing loss The Veteran asserts that he has bilateral hearing loss related to his period of active service. Notably, his military occupational specialty was equipment records parts specialist which is associated with a low probability of hazardous noise exposure. The Veteran testified that during his active service, he stayed on the Air Force base and was exposed to noise from the airplanes all morning and night. Additionally, he stated that in the motor pool, he was exposed to heavy equipment, loud motors, and generators. He also noted exposure to noise from firearms with inconsistent use of hearing protection. The Board finds the Veteran's reports of noise exposure to be competent and credible, as consistent with the circumstances of his service. As such, exposure to hazardous noise is conceded. During the October 2019 VA examination, the Veteran was diagnosed with bilateral hearing loss. However, after a review of the claims file and an audiological evaluation, the examiner stated that the test results were not valid for rating purposes. Specifically, the examiner noted that the speech reception thresholds were obtained at 25 decibels. As the pure tone average and speech reception thresholds were not commensurate at this level, such is indicative of non-organic hearing loss in both ears. The examiner further stated that the word discrimination score was not available, and that modified performance intensity was not obtained on either ear because the Veteran's responses were not consistent and multiple omissions made did not allow for scoring accuracy. The examiner opined that the Veteran's right and left ear hearing loss were not at least as likely as not caused by or a result of the Veteran's active service. The rationale was that the Veteran's hearing loss was non-organic which is not associated with noise exposure. Although the Veteran testified that he first noticed hearing loss in June 1984, he described an ear infection and said he noticed he heard buzzing and ringing in his ears on a constant basis from that time. He did not recall whether he had a hearing examination at separation but stated that later in the 1980's, when he was joining the Reserve Officers' Training Corps, the audiologist recommended hearing aids that he refused. The Veteran stated that he did not want hearing aids because he did not believe there was anything wrong with him. Notably, the clinical evidence of record does not suggest that the Veteran suffered continuous symptoms of bilateral hearing loss since his discharge from service. Indeed, treatment records as recent as August 2019 reflect that the Veteran denied a communication barrier with respect to his hearing ability. Further, regarding a nexus to service, the VA examiner opined that bilateral hearing loss was less likely due to the Veteran's military service because the results of the examination were inconsistent and unreliable indicating non-organic hearing loss. No competent nexus evidence to the contrary has been submitted. The Veteran has been accorded ample opportunity to furnish medical evidence in support of the claim; he has not done so. See 38 U.S.C. § 5107 (noting it is a claimant's responsibility to support a claim for VA benefits). The Board finds the October 2019 VA examination report to be highly probative, as it is based on a thorough review of the Veteran's claims file in additional to an audiological evaluation. To the extent that the Veteran contends that a medical relationship exists between the bilateral hearing loss and service, the Board again acknowledges that laypersons are competent to testify as their observations. Jandreau, 492 F.3d at 1376-77. Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board finds, however, that the question regarding the potential relationship between the Veteran's hearing loss and his military service, to include noise exposure or other injury, to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran is not shown to have medical training or knowledge to comment on such. Therefore, a medical link between the Veteran's bilateral hearing loss and his service has not been shown. In the absence of any persuasive evidence that the bilateral hearing loss is etiologically related to active service, service connection is not warranted, and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for tinnitus The Veteran also asserts that his tinnitus is secondary to his in-service noise exposure. During the January 2021 Board hearing, the Veteran testified that he first noticed a buzzing sound in his ears during service. When he sought treatment, the doctor told him that as soon as he left the noisy environment of service, the noise would stop. However, he indicated that the sound has continued since that time. During the October 2019 VA examination, the Veteran was diagnosed with tinnitus. At that time, the Veteran reported experiencing a constant ringing in his ears since his period of service. Further, the Veteran submitted several buddy statements reiterating that the Veteran noticed buzzing in his ears upon his return from the military and that the volume of everything had to be turned up for him to hear it. The Veteran is competent to describe symptoms observable to his senses, such as ringing in his ears. Accordingly, he is found competent to diagnose tinnitus. See Jandreau, 492 F.3d at 1377. Further, he is competent to report the onset and continuity of his current symptomatology as tinnitus is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The October 2019 VA examiner found that the Veteran had a diagnosis of tinnitus and conceded in-service noise exposure. However, the examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of the Veteran's military noise exposure. The rationale was that there were no audiological treatment records from service and his military occupational specialty had a low noise exposure probability. The Board finds this opinion inadequate as it is based on an absence of evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As such, and due to the inherently subjective nature of tinnitus, the Board will resolve any reasonable doubt in the Veteran's favor. The Veteran's claim for service connection for tinnitus is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for syphilis The Veteran asserts that service connection is warranted for syphilis, as he contracted it in service. Specifically, the Veteran testified that he believes that he contracted syphilis on his first day of service, the night before he left for basic training. After reviewing the medical evidence of record, the Board finds that service connection is not warranted for syphilis. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of syphilis or residuals thereof, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement in a claim of service connection of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the evidence does not reflect that the Veteran has or has had any residuals of syphilis at any time during this appeal. The Veteran's October 1988 report of medical history for his Army National Guard commission states that the Veteran reported having syphilis at age 5, without sequelae after treatment. On the accompanying report of medical examination, the Veteran's serology rapid plasma reagin was nonreactive, indicating a negative result for syphilis. The Veteran's post-service treatment records include a June 2001 blood test that was reactive for T pallidum. However, such is not indicative of a current infection and the results state that they should only be used to confirm a nontreponemal test for syphilis. The Veteran's remaining treatment records are absent of complaint or treatment for syphilis or residuals thereof during the pendency of the claim. Further, during the Board hearing, the Veteran testified only that he had syphilis in service and that he was treated for such. He did not indicate that he had residuals of or recurring syphilis since that time. After a review of the above, the Board finds that the most probative evidence of record reflects that the Veteran lacks a diagnosis of syphilis or residuals thereof. Thus, there is no current disability to attribute to the Veteran's military service, and the claim must be denied. Brammer, 3 Vet. App. at 223. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. VA obtained an opinion in September 2019 regarding the nature and etiology of the Veteran's claimed acquired psychiatric disorder. At that time, the Veteran was diagnosed with depressive disorder due to general medical condition, including his diabetes mellitus, hypertension, neuropathy, and chronic kidney disease, and vision problems. The examiner stated that the Veteran did not meet the full diagnostic criteria for posttraumatic stress disorder (PTSD). The examiner opined that the Veteran did not have PTSD or any other mental disorder due to active duty service. The examiner noted that the Veteran did not have a pattern of mental health treatment from discharge until about 2008. The Board finds this opinion inadequate to adjudicate the claim. Notably, the Veteran's post-service treatment records reflect a diagnosis of PTSD in July 2019. While the examiner noted this diagnosis, he failed to indicate whether such was an inaccurate diagnosis or indicate whether the Veteran had PTSD previously during the appeal period. Further, the Veteran testified that after being punished for falling out of formation during service, he started drinking and having nightmares. The Veteran also submitted buddy statements indicating that the Veteran's personality changed after he joined the service, specifically noting that he started drinking. While the examiner stated that the Veteran did not have a pattern of mental health treatment until 2008, there is at least some evidence of a pattern of mental health symptoms since service that the examiner failed to address. As such, an opinion should be obtained addressing the nature and etiology of the Veteran's acquired psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (indicating that once VA undertakes the effort to provide an examination or obtain an opinion, it must provide an adequate one). 2. Entitlement to service connection for a vision disability is remanded. During the Board hearing, the Veteran testified that he began having blurred vision during service after he spilled oil in his left eye while changing the oil in one of the vehicles. The Veteran further indicated that his blurred vision continues to today. He submitted multiple buddy statements confirming his reports of the in-service incident and his current vision problems. To date, VA has not obtained a medical examination and opinion addressing this claim. Accordingly, a VA examination and opinion should be obtained regarding the nature and etiology of the Veteran's claimed vision disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain a VA opinion on the nature and etiology of the Veteran's claimed acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to and reviewed by the examiner. If an additional examination is deemed warranted, one should be arranged. All indicated tests should be performed. The examiner should identify all acquired psychiatric disorders diagnosed during the appeal period (from June 2015). In this regard, the medical professional should consider the VA treatment records showing a PTSD diagnosis in July 2019 and the September 2019 VA examination and reconcile any findings of conflicting diagnoses. With respect to each acquired psychiatric disorder diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused by or is otherwise etiologically related to the Veteran's period of active military service. The examiner should consider the lay statements noting a change in the Veteran's personality and onset of alcohol usage during service. A complete rationale should be given for all opinions and conclusions expressed. 2. Schedule a VA examination regarding the nature and etiology of the Veteran's claimed vision disability. The record, to include a copy of this Remand, must be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner should identify all vision disorders diagnosed during the appeal period (from June 2015). With respect to each vision disorder diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused by or is otherwise etiologically related to the Veteran's period of active military service. The examiner should consider the lay statements regarding oil spilling in the Veteran's eye during service and his reported blurred vision since that time. A complete rationale should be given for all opinions and conclusions expressed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.