Citation Nr: 18160656
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-48 443
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a bilateral hearing loss is denied.
Entitlement to service connection for type II diabetes mellitus is denied.
REMANDED
Entitlement to service connection for a nasal disorder, to include residuals of sinus surgery is remanded.
Entitlement to service connection for hypertension is remanded.
Entitlement to service connection for residuals of a stroke, to include secondary to hypertension is remanded.
Entitlement to eligibility for the purchase of automobile and adaptive equipment, or adaptive equipment only.

FINDINGS OF FACT
1. A bilateral hearing loss was not demonstrated during the Veteran’s active-duty service, a sensorineural hearing loss was not compensably disabling within a year of separation from active duty, and a bilateral hearing loss is not otherwise etiologically related to service.
2. Type II diabetes mellitus was not demonstrated during the Veteran’s active-duty service, it was not compensably disabling within a year of separation from active duty, it is not caused or aggravated by a service-connected disorder, and is not otherwise etiologically related to service.
CONCLUSIONS OF LAW
1. A bilateral hearing loss was neither incurred nor aggravated by service, nor may a sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385.
2. Type II diabetes mellitus was not incurred in or aggravated by service, it may not be presumed to have been so incurred, and it is not secondary to a service-connected disorder. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1973 to October 1993. 
Service Connection
Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d).
Service connection for diabetes mellitus and sensorineural hearing loss may be established on a presumptive basis if the disorder was manifested to a compensable degree within one year following discharge from active duty. 38 C.F.R §§ 3.307, 3.309(a).
Hearing loss
The Veteran contends that he has a bilateral hearing loss which is related to in-service noise exposure. He served as an indirect fire infantryman, mechanical communications systems operator, and multi-channel communications equipment repairman.  The Board presumes that he was exposed to acoustic trauma inservice.
For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 
Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993).
The question for the Board is whether the Veteran has a current hearing loss that was a chronic disorder in service, whether bilateral sensorineural hearing loss was manifested to a compensable degree within one year of discharge from active duty, or whether a bilateral hearing loss began during service or is at least as likely as not related to an in-service injury or disease.
After reviewing the evidence, the Board finds that, while the Veteran now has a bilateral hearing loss, such a disability for VA purposes was not demonstrated in service. 38 C.F.R. § 3.385.  Further, a bilateral sensorineural hearing loss was not manifest to a compensable degree within a year of the appellant’s separation from active duty.  Finally, there is no competent evidence showing a continuity of hearing loss symptomatology since service.  As such, entitlement to service connection for a bilateral hearing loss is denied.  38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).  
A review of the Veteran’s service treatment records is silent for any finding or complaint of hearing loss. His July 1993 separation examination reflected normal hearing for VA compensation purposes bilaterally. 38 C.F.R. § 3.385. On a report of medical history completed at that time, the Veteran denied any history of hearing loss.  There is also no medical evidence reflecting a compensably disabling hearing loss within one year following separation from active duty.
The earliest evidence of a diagnosis of a hearing loss for VA purposes was entered following a June 2014 VA examination, over a decade after the Veteran’s separation from active duty and nearly a decade outside of the applicable presumptive period.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (The normal medical findings at the time of the Veteran’s separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.) 
The June 2014 VA examiner opined that the Veteran’s bilateral sensorineural hearing loss was not at least as likely as not related to an in-service injury or disease, including in-service noise exposure.  The rationale was that the Veteran’s hearing loss pattern was not consistent with noise exposure, as it was not increased in the higher frequency range.  It was opined that the appellant’s hearing loss was associated with presbycusis, i.e., hearing loss caused by the natural aging of the auditory system.
Given that a hearing loss was not demonstrated inservice, given that a sensorineural hearing loss was not compensably disabling within a year of the Veteran’s separation from active duty, and given that the only medical opinion addressing the etiology of the claimant’s current hearing loss is against the claim, the Board finds that service connection for a bilateral hearing loss must be denied.  38 U.S.C. § 1110, 1131.
In reaching this decision the Board acknowledges that the Veteran is competent to report a history of problems hearing since service.  The Veteran, however, is not competent to provide a diagnosis in this case or determine that his symptoms were manifestations of a bilateral hearing loss that was incurred inservice.  The etiology of the appellant’s hearing loss is medically complex, and it requires knowledge of interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board thus assigns more probative weight to the competent, contemporaneous medical evidence of record, that being the service treatment records, particularly the July 1993 separation examination demonstrating normal hearing for VA purposes, and the June 2014 VA examiner’s opinion. 38 C.F.R. § 3.385.  
Thus, the evidence preponderates against finding that a sensorineural hearing loss was manifested in service, or was compensably disabling within a year of the Veteran’s separation from active duty, or was directly related to any injury or disease during service.  The claim is denied.
Type II diabetes mellitus
The Veteran contends that he has type II diabetes mellitus which began during service.
Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).
The question for the Board is whether the Veteran has type II diabetes mellitus that was a chronic disease in service, was manifested to a compensable degree within one year of discharge from active duty, is at least as likely as not related to an in-service injury or disease, or was caused or aggravated by a service-connected disability.
After reviewing the evidence, the Board finds that, while the Veteran now has type II diabetes mellitus, the disorder was not demonstrated in service, it was not manifest to a compensable degree within a year of the appellant’s separation from active duty, and there is no competent evidence showing a continuity of diabetes symptomatology since service. Finally, the preponderance of the evidence is against finding that type II diabetes mellitus was incurred in or otherwise related to active-duty service or was caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a), 3.310.  
First, although the Veteran served during the Vietnam era, his records do not reflect, and he does not contend, that he served in the Republic of Vietnam, or in one of the units designated by the Department of Defense as having served in or near the Korean Demilitarized Zone, or on identified bases in Thailand, or that he was otherwise exposed to herbicides. As such, he is not presumed to have been exposed to herbicides, and the presumption of service-connection for type II diabetes mellitus based on Agent Orange exposure is inapplicable. 38 C.F.R. §§ 3.307 (a)(6), 3.309 (e). Rather, the Veteran contends that his type II diabetes mellitus began during his active-duty service. 
A review of the Veteran’s service treatment records is significant for a note of an elevated fasting blood glucose reading of 129 milligrams per deciliter in July 1993. The examiner noted that this measurement was “[high],” but no diagnosis of diabetes was made at that time. The service treatment records are otherwise silent for a diagnosis of diabetes or complaints or treatment for blood sugar problems. 38 C.F.R. § 3.385. There is also no medical evidence reflecting evidence of compensably disabling diabetes mellitus within one year following separation from active duty.
VA treatment records first record a suspected diagnosis of diabetes in 2009, over a decade after the Veteran’s separation from active duty and over a decade outside of the applicable presumptive period.  
In January 2018 a VA examiner opined that the Veteran’s type II diabetes mellitus was not at least as likely as not related to an in-service injury or disease, including the elevated fasting blood glucose reading on separation.  The examiner reasoned that the appellant had a single elevated reading inservice, and that blood sugar readings could be elevated for many different reasons, such as timing of the reading and the Veteran’s diet. The examiner took particular note of the fact that a diagnosis of diabetes mellitus was not made until 2009, and that no evidence supported a continuity of care for diabetes between 1993 and 2009. There is no competent evidence to the contrary.
Given that diabetes mellitus was not demonstrated inservice, given that diabetes mellitus was not compensably disabling within a year of the Veteran’s separation from active duty, and given that the only medical opinion addressing the etiology of the claimant’s diabetes mellitus is against the claim, the Board finds that service connection for type II diabetes mellitus must be denied.  38 U.S.C. § 1110, 1131.
In reaching this decision the Board acknowledges the Veteran’s lay testimony. The Veteran, however, is not competent to provide a diagnosis in this case or determine that his inservice symptoms were manifestations of diabetes mellitus, or that diabetes mellitus was incurred inservice.  Diagnosing and determining the etiology of diabetes mellitus are medically complex determinations, and require knowledge of interpretation of complicated diagnostic medical testing, and the interaction of multiple organ systems in the body respectively.  Jandreau, 492 F.3d at 1377 n.4. The Board assigns greater probative weight to the competent, contemporaneous medical evidence of record, i.e., the January 2018 VA examiner’s opinion. 
The Board has considered the representative’s assertion that the Veteran’s diabetes mellitus is secondary to hypertension. The Veteran is not service-connected for hypertension, and therefore service connection is not currently available secondary to that disorder. While the issue of entitlement to service connection for hypertension is in appellate status, it is remanded for development as discussed below. Despite the remand the Board finds that the issue of entitlement to service connection for diabetes mellitus is not inextricably intertwined with the issue regarding hypertension, and adjudication of the claim for diabetes mellitus is appropriate at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for the second issue).
In this regard, no medical evidence of record supports the representative’s assertion that that diabetes mellitus was caused or aggravated by hypertension. Neither the Veteran, nor his representative are shown to have the knowledge or expertise necessary to opine as to a relationship between hypertension and the development or aggravation of diabetes mellitus. Such an issue is medically complex because it requires knowledge of the interaction of multiple organ systems in the body. Jandreau, 492 F.3d at 1377. Accordingly, the representative’s bare assertion that diabetes mellitus is secondary to hypertension does not constitute competent medical evidence and is not probative in the present appeal. 
The Board acknowledges that the Veteran has not been afforded a VA examination to specifically address whether hypertension caused or aggravated his diabetes mellitus. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when, in pertinent part, the record indicates that a disability or signs and symptoms of disability may be associated with active service. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 
Here, the record contains no competent evidence suggesting that type II diabetes mellitus may be attributable to hypertension. Accordingly, the representative’s bare assertion of a relationship does not reach even the low threshold under McLendon and VA’s duty to provide a VA examination regarding this issue has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c), 3.326; McLendon, 20 Vet. App. at 81-82. Therefore, even if hypertension were service-connected, the evidence currently of record preponderates against granting service connection for diabetes mellitus on a secondary basis, and is insufficient to warrant further examination to address that issue.  Therefore, the issue of entitlement to service connection for diabetes mellitus is not inextricably intertwined with the issue of entitlement to service connection for hypertension, and adjudication of the former is appropriate. 
Thus, the evidence preponderates against finding that type II diabetes mellitus was manifested in service, was compensably disabling within a year of the Veteran’s separation from active duty, was directly related to any event or injury during service, or was caused or aggravated by a service-connected disorder.  The claim is denied. 
The Board notes that the Veteran is invited to submit medical evidence in support of his contention that his diabetes mellitus was caused or aggravated by hypertension. In the event of receipt of such evidence, his claim may be reopened by the AOJ. 
REASONS FOR REMAND
Nasal disorder
The Veteran has not been provided with a VA examination to address the nature and etiology of the claimed nasal disorder. February 2009 VA treatment records reflected paranasal sinus disease, and in submitting his October 2012 claim for disability benefits the Veteran essentially asserted that he had the current signs or symptoms of a nasal disability. His service treatment records note various complaints relating to the sinuses and a February 1992 note reported that he underwent surgery for a sinus infection in January 1991. 
This evidence creates a plausible connection between the documented in-service surgery and a claimed nasal disorder.  Such evidence, therefore, triggers VA’s duty to provide the Veteran an examination to determine the nature and etiology of the claimed nasal disorder.  McLendon, 20 Vet. App. at 81.  
 
Hypertension and residuals of a stroke
The Veteran has not been provided with a VA examination to address the nature and etiology of his hypertension. Numerous VA treatment records indicate that the Veteran currently has hypertension. The service treatment records note isolated elevated blood pressure readings of 140/90 in November 1988 and 140/99 in and June 1992. 
This evidence creates a plausible connection between the documented in-service elevated blood pressure readings and current hypertension.  Therefore, an examination is necessary to determine the nature and etiology of the Veteran’s hypertension.  See Id.  
The issue of entitlement to service connection for residuals of a stroke is deferred pending the development requested herein. Harris, 1 Vet. App. at 183.
Automobile and adaptive equipment 
In September 2018, the Veteran submitted a timely notice of disagreement to the August 2018 rating decision which denied entitlement to eligibility for the purchase of automobile and adaptive equipment, or adaptive equipment only, but a statement of the case has not yet been issued. Hence, a remand is required for the AOJ to issue a statement of the case addressing this issue. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
Accordingly, the matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from July 2018 to the present. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must then be given an opportunity to respond.
2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed nasal disorder. For any nasal disorder diagnosed since October 16, 2012, the examiner must opine whether it is at least as likely as not related to an in-service injury or disease, including the January 1991 sinus infection surgery noted in a February 1992 service treatment record.  
A complete, well-reasoned rationale must be provided for any opinion offered.  If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.
3. After completing directive one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed hypertension. The examiner must opine whether hypertension at least as likely as not (1) began during active service, (2) manifested within one year after discharge from active duty, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must discuss the relevance of the blood pressure readings of 140/90 in November 1988 and 140/99 in June 1992.  
A complete, well-reasoned rationale must be provided for any opinion offered.  If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.
4. If and only if, the Veteran’s hypertension is found to be related to service, then schedule an examination by an appropriate clinician to determine the nature and etiology of any diagnosed residuals of a stroke. The examiner must opine whether residuals of a stroke are at least as likely as not related to hypertension. If not, the examiner must address whether they are at least as likely as not aggravated beyond their natural progression by hypertension.
A complete, well-reasoned rationale must be provided for any opinion offered.  If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.
5. Send the Veteran and his representative a statement of the case addressing the issue of entitlement to eligibility for the purchase of automobile and adaptive equipment, or adaptive equipment only. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration.

 
DEREK R. BROWN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Paul J. Bametzreider, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.