Citation Nr: 18154211
Decision Date: 11/30/18	Archive Date: 11/29/18

DOCKET NO. 16-24 791
DATE:	November 30, 2018
ORDER
New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II (diabetes).
Entitlement to an initial compensable rating for bilateral hearing loss is denied.
Entitlement to a rating in excess of 10 percent for hypertension is denied.
REMANDED
Entitlement to service connection for a kidney/bladder disorder, to include as secondary to diabetes and service-connected hypertension, is remanded.
Entitlement to service connection for diabetes is remanded.
Entitlement to service connection for peripheral neuropathy, to include as secondary to diabetes, is remanded.
Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded.
FINDINGS OF FACT
1. The Veteran’s claim of entitlement to service connection for diabetes was initially denied in a June 2012 rating decision; the Veteran did not appeal this determination, and new and material evidence was not received within one year of its issuance.
2. Evidence received more than one year since the June 2012 rating decision, to include private treatment records and an article linking hypertension and diabetes, is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for diabetes.
3. Throughout the appeal period, the Veteran has had, at worst, Level II hearing acuity in each ear.  
4. Throughout the appeal period, the Veteran’s hypertension has not been manifested by diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more.
CONCLUSIONS OF LAW
1. The June 2012 rating decision that denied service connection for diabetes is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. 
2. New and material evidence having been received, the claim of entitlement to service connection for diabetes is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
3. The criteria for an initial compensable rating for bilateral hearing loss are not met.  38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100.  
4. The criteria for a rating in excess of 10 percent for hypertension are not met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.104, DC 7101.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1971 to March 1974 and November 1984 to January 2002.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran’s claim of entitlement to service connection for depression has been recharacterized as reflected on the title page, to include consideration of all psychiatric disorders reasonably raised by the record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).
Increased Ratings
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Where the evidence demonstrates distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  
1. Entitlement to an initial compensable rating for bilateral hearing loss
Here, the Veteran has been assigned a noncompensable rating for bilateral hearing loss throughout the appeal.  As will be detailed below, the Board finds that the noncompensable evaluation should not be disturbed; therefore, staged ratings are not warranted. 
VA disability compensation for impaired hearing is derived from the application in sequence of two tables.  See 38 C.F.R. 4.85, Table VI, Table VII.  Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000-hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation.  Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages).  Level I represents essentially normal acuity, and numeric level XI represents profound deafness.  The table is applied separately for each ear to derive the values used in Table VII.  Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI.  See 38 C.F.R. § 4.85.
Controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing results from July 2015 VA audiology examination fails to demonstrate more profound hearing loss than Level II in each service-connected ear, which warrants a noncompensable percent rating throughout the appeal.  See 38 C.F.R. § 4.85, Table VI, Table VII (Diagnostic Code 6100).  A pattern of exceptional hearing loss is also not demonstrated, as puretone thresholds were not 55 dB or more at 1000, 2000, 3000 or 4000 Hertz or 30 dB or less at 1000 Hertz and 70 dB or more at 2000 Hertz during the examinations.  38 C.F.R. § 4.86.


Extraschedular Rating
The Veteran specifically raised the issue of entitlement to extraschedular consideration for bilateral hearing loss.  See July 2016 representative written statement.  Specifically, the representative noted that the Veteran’s hearing loss “casually affected his employment.”  Id.  The Veteran reported to the July 2015 VA examiner that the functional impact of his hearing loss includes bilateral tinnitus and difficulty understanding speech unless he is in close proximity to his wife and boss.  
There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”).  Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 116.  Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating.  Thun, 22 Vet. App. at 116.  In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate.  Yancy, 27 Vet. App. at 494-95. 
In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims (Court) explains in detail what functional impacts of hearing loss are contemplated by the rating criteria.  See Rossy v. Shulkin, No. 16-0720 (December 13, 2017).  
With respect to the first prong of Thun, the evidence in the instant appeal does not establish an exceptional disability picture as to render the schedular criteria inadequate.  His reported ringing in the ears is contemplated in the 10 percent rating separately assigned to his service-connected tinnitus.  Regarding his other hearing complaints, namely difficulty hearing conversations, the schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing.  The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds.  The ability of the Veteran to understand people is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns that were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing.  
In Doucette, the Court highlighted recent regulatory changes to the rating criteria addressing hearing loss, particularly its recognition of exceptional patterns of hearing loss for circumstances that “do not reflect the true extent of difficulty understanding speech in the everyday work environment, even with the use of hearing aids” and the “extreme handicap in the presence of any environmental noise, [which] often cannot be overcome by the use of hearing aids.”  See Doucette, 28 Vet. App. 366, 368 (quoting 59 Fed. Reg. 17, 295-6 (Apr. 12, 1994)).  The Court determined that:
in light of the plain language of 38 C.F.R. § 4.85 and 4.86, as well as the regulatory history of these sections, the rating criteria for hearing loss contemplate the functional effects of decreased haring and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure.  Thus, when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. 

See Id. at 369.  The Board finds that the VA examiner addressed the Veteran’s functional hearing impairment by noting the difficulties that he experienced and discussed the impact of his hearing loss on the ordinary conditions of daily life, as well as with employment, which has been considered in evaluating his service-connected hearing loss disabilities under the VA Rating Schedule.  The rating criteria are therefore adequate to evaluate the bilateral hearing loss, and referral to the Director of Compensation Service for consideration of an extraschedular rating is not warranted.    
2. Entitlement to a rating in excess of 10 percent for hypertension
The Veteran is currently in receipt of a 10 percent rating for hypertension under Diagnostic Code 7101.  The Veteran asserts that a higher rating is warranted as his symptoms of fatigue, dizziness, and shortness of breath require continuous medication for control.  See May 2016 VA Form 9.  
Diagnostic Code 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension).  Hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, is rated 10 percent disabling.  Hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, is rated 20 percent disabling.  Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling.  Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling.  Note (1) to Diagnostic Code 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.  Note (2) provides that hypertension that is due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be rated as part of the condition causing it rather than by a separate rating.  Note (3) to Diagnostic code 7101 provides that hypertension is to be rated separately from hypertensive heart disease and other types of heart disorders.  38 C.F.R. § 4.104.
Undated private treatment records printed in August 2014 show blood pressure readings of 149/82, 144/88, 122/68, 130/89, 133/66, 148/92, 135/71, 126/78, and 139/88.  A September 2014 private treatment record shows a blood pressure reading of 130/74.  A December 2014 private treatment record shows a blood pressure reading of 142/76.  A March 2015 private treatment record shows a blood pressure reading of 124/76.  A May 2015 private treatment record shows a blood pressure reading of 167/104.  
Blood pressure readings during the Veteran’s July 2015 VA examination were 162/97, 140/90, 163/96. 
The Board finds that throughout the appeal period, the Veteran required continuous medication for hypertension.  The evidence shows that throughout the appeal period all of the Veteran’s diastolic pressure readings are less than 110 and his systolic pressure readings are less than 200.  As such, a rating in excess of 10 percent is not warranted.  See 38 C.F.R. § 4.104, Diagnostic Code 7101; see 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).
REASONS FOR REMAND
4. Entitlement to service connection for diabetes is remanded.
5. Entitlement to service connection for a kidney/bladder disorder, to include as secondary to diabetes and service-connected hypertension, is remanded.
6. Entitlement to service connection for peripheral neuropathy, to include as secondary to diabetes, is remanded.
In a July 2011 written statement, the Veteran’s wife asserts that his diabetes symptomatology manifested during his military service and that he experienced a continuity of diabetes symptomatology since service.  Specifically, she reported that the Veteran experienced symptoms of constant thirst, fatigue, irritability, and frequent urination during service.  Notably, his private treatment records indicate a history of diabetes diagnosed in 2004, two years after his service separation.  Thus, a VA examination is required to determine if his condition manifested to a compensable degree within one year after his separation from service or is otherwise related to service.  
Further, the Veteran maintains that his diabetes, peripheral neuropathy, and kidney/bladder disorders arose as a result of exposure to herbicide agents, to include Agent Orange, while stationed at Ft. Ord in California.  See August 2015 written statement.  Thus, the RO must take appropriate steps to verify herbicide agent exposure in locations other than the Korean DMZ or Vietnam, including asking the Veteran the approximate dates, location, and nature of the alleged herbicide agent exposure; obtaining service personnel records; and if either the Veteran or any service personnel records that are obtained provide sufficient information to require a Joint Services Records Research Center (JSRRC) search, the Agency of Original Jurisdiction (AOJ) should send a request to the JSRRC for verification of exposure to herbicide agents.
The Veteran should be afforded a VA examination to verify whether or not any current peripheral neuropathy is considered early-onset peripheral neuropathy and to obtain an opinion as to whether any currently diagnosed diabetes, peripheral neuropathy, and kidney/bladder disorders are due to active service, to include herbicide agent exposure therein, if such exposure is verified.  In regards to the Veteran’s kidney disease, the Board notes that a November 1991 service treatment record indicated an abnormal level of albumin.  Further, the Veteran has submitted articles indicating a relationship between kidney disease and the treatment of hypertension.  Thus, on remand the examiner must address the issue of causation and aggravation with respect to the possibility of secondary service connection. 
7. Entitlement to service connection for an acquire psychiatric disorder, to include as secondary to service-connected disabilities, is remanded.
In April 2016, the Veteran underwent a VA examination to determine the nature and etiology of his psychiatric condition.  The examiner found no psychiatric diagnosis and therefore did not render a medical opinion.  However, an August 2014 private treatment record reflects a history of anxiety and depression treated with Wellbutrin.  Additionally, he had a PHQ-9 score of 11 and endorsed a history of suicidal ideation.  Furthermore, in a June 1997 report of medical history, the Veteran reported experiencing “depression or excessive worry.”  It was noted that his depression was secondary to dealing with his divorce and he was treated with Prozac from February to October 1996.  As such, a remand is required to afford the Veteran a new examination to determine whether his acquired psychiatric disorder is related to active service.  Finally, updated VA and private treatment records should be obtained on remand. 
The matters are REMANDED for the following actions:
1. Obtain the Veteran’s complete service personnel records.
2. The AOJ should ask the Veteran to identify the approximate date(s), location(s), and the nature and circumstance(s) of his alleged exposure to herbicide agents in service.
Once the Veteran’s service personnel records and his responses to exposure have been obtained, the AOJ should arrange for exhaustive development to verify whether the Veteran’s service placed him in circumstances where he would have been exposed to herbicide agents.  Then the AOJ should make a formal finding for the record as to whether or not the Veteran served somewhere in service where herbicide agents were used.  The Veteran should be advised of the determination.
Such development includes, but is not limited to, the following: send a detailed statement of the Veteran’s claimed exposure to herbicide agents to the Compensation Service via e mail at VAVBAWAS/CO/211/AGENT ORANGE, and request a review of the inventory of herbicide operations maintained by the DoD to determine whether herbicides were used or stored as alleged.  If the exposure is not verified, a request should then be sent to the JSRRC for verification of exposure to herbicide agents.  Such development must be documented and associated with the record.
3. Obtain any outstanding VA treatment records.
4. With any necessary assistance from the Veteran, obtain all outstanding private treatment records.  If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e).
5. After obtaining the requested records (to the extent possible), schedule the Veteran for an appropriate VA examination to address the current nature and etiology of his diabetes, peripheral neuropathy, and kidney/bladder disorders.  The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed.  All findings should be reported in detail.  
a)	The examiner should address the Veteran’s exact diagnosis and should clarify if the Veteran has peripheral neuropathy (early or late onset) or some other diagnosis and identify the impacted extremity.
b)	If and only if herbicide agent exposure is verified, the examiner should opine whether the Veteran has early onset peripheral neuropathy, and if so, was it manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents.
c)	The examiner should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes manifested within one year of separation from service.  In answering this question, discuss the Veteran’s wife’s July 2011 statement that the Veteran experienced symptoms of constant thirst, fatigue, irritability, and frequent urination during service and the reported history of a diabetes diagnosis in 2004, two years after service separation.
d)	For any diagnosed diabetes, peripheral neuropathy, and/or kidney/bladder disorders, the examiner should address whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was incurred in, or is otherwise related to, the Veteran’s active service, to include the November 1991 service treatment record indicating an abnormal level of albumin, or presumed exposure to herbicide agents (if verified)?
e)	Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes, peripheral neuropathy, and/or kidney/bladder disorders are proximately due to his service-connected disabilities, including hypertension and heart disease.  
The examiner must address the article entitled “Kidney Disease of Diabetes” submitted by the Veteran’s representative in July 2016, indicating a link between the treatment of hypertension and kidney disease.  Please note that it is not necessary that hypertension or heart disease be service-connected, or even diagnosed, at the time his diabetes, peripheral neuropathy, and/or kidney/bladder disorders are incurred, and reliance on this fact in support of a negative opinion will render it inadequate.
f)	Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes, peripheral neuropathy, and/or kidney/bladder disorders are aggravated (worsened beyond natural progression) by his service-connected disabilities, including hypertension and heart disease.
The examiner must address the article entitled “Kidney Disease of Diabetes” submitted by the Veteran’s representative in July 2016.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so.  The absence of evidence of treatment in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion.  A complete rationale shall be given for all opinions and conclusions expressed.
6. Schedule the Veteran for an examination to determine the nature and etiology of his acquired psychiatric disorder.  The claims folder must be provided to and reviewed by the examiner in conjunction with the examination.  All indicated tests and studies should be conducted, and all findings reported in detail.  For the purposes of rendering this opinion, please presume the existence of a current diagnosis of depression and anxiety, as this diagnosis was made within close proximity to the appeal period (thereby legally establishing evidence of a present disability).  The examiner should address the following:
a)	Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder, to include depression and anxiety, is related to service, to include as a result of the June 1997 in-service notation and treatment of depression.
b)	Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder is proximately due to service-connected disabilities.  Please note that it is not necessary that his disabilities be service-connected, or even diagnosed, at the time his psychiatric condition is incurred, and reliance on this fact in support of a negative opinion will render it inadequate.
c)	Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder is aggravated (worsened beyond natural progression) by service-connected disabilities.
A complete rationale must be provided for all opinions expressed.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be specifically acknowledged and considered in formulating opinions.  If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so should be provided.


 
S. BUSH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Forde, Counsel 

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