Citation Nr: 18160355
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-58 268
DATE:	December 26, 2018
ORDER
Entitlement to service connection for tinnitus is granted.
Entitlement to an initial compensable rating for bilateral hearing loss is denied.
Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type 2 is denied.
REMANDED
Entitlement to service connection for chronic fungus infection of the feet is remanded.
Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is remanded.
FINDINGS OF FACT
1. The Veteran’s tinnitus is related to in-service acoustic trauma.
2. The Veteran’s hearing loss is manifested by level IX hearing in the right ear and level I hearing in the left ear.
3. The Veteran’s diabetes mellitus type 2 is characterized by restricted diet and use of oral hypoglycemic agents, but is not characterized by regulation of activities, episodes of ketoacidosis, or episodes of hypoglycemic reactions.
CONCLUSIONS OF LAW
1. The criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.
2. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100.
3. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus type 2 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.119, Diagnostic Code 7913.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from May 1966 to May 1968, including service in the Republic of Vietnam.  A hearing was not requested.
1. Entitlement to service connection for tinnitus
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  
These elements are satisfied for the Veteran’s tinnitus claim.  Regarding the first element, a January 2012 private medical examination indicates that the Veteran has tinnitus.  The Veteran is competent to testify regarding the presence of tinnitus because the existence of this disorder is within the knowledge and personal observations of lay witnesses.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  In his January 2013 VA audiological examination, the Veteran states that he does not have tinnitus.  Because the evidence is at least in equipoise, the Veteran is entitled to prevail with respect to a current diagnosis of tinnitus.  
The second element is also satisfied, in that in the January 2012 private medical examination and the January 2013 VA audiological examination the Veteran indicates that he experienced hearing loss during service while serving as a mortar man.  Consistent with this, his hearing is worse in his right ear, which would have been closest to the mortar cannon while firing.  
The nexus element is also satisfied.  The January 2012 private medical examiner concludes that the Veteran’s tinnitus is at least as likely as not related to service.  This conclusion is based on the Veteran’s current symptoms and his testimony about in-service acoustic trauma.  This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008).  As all of the elements of service connection are established, the Veteran is entitled to prevail with respect to his claim.  
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.
VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.”  Hart v. Mansfield, 21 Vet. App. 505 (2007).
2. Entitlement to an initial compensable rating for bilateral hearing loss
In June 2013, the RO granted entitlement to service connection for bilateral hearing loss at an initial noncompensable rating under Diagnostic Code 6100 from February 3, 2012, the date that the Veteran filed his claim.  The Veteran is appealing the rating aspect of that decision.  Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed.  38 C.F.R. § 3.400(o).
To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85.  To evaluate an individual’s level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85(b).  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear.  38 C.F.R. § 4.85(e).
The rating criteria provide for alternative ratings when an exceptional pattern of hearing is met.  If the pure tone threshold at each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b).
The Veteran’s January 2013 VA audiological examination does not provide for a compensable rating for hearing loss.  Pure tone thresholds, in decibels, are as follows:
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	35	30	75	80	80
LEFT	30	30	30	20	55
The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz is 66 decibels in the right ear and 34 decibels in the left ear.  Speech recognition ability using the Maryland CNC test is 56 percent in the right ear and 92 percent in the left ear.  The audiological findings correspond to a level VIII hearing in the right ear and level I hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Under Table VII, a designation of level VIII hearing in the right ear and level I hearing in the left ear yields a 0 percent evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100.
Section 4.86(a) is inapplicable because for neither ear are the Veteran’s pure tone levels at a value of 55 decibels or higher at 1000, 2000, 3000 and 4000 Hertz.  
Consideration of § 4.86(b) does not provide a higher rating.  The right ear has a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 or more at 2000 Hertz, so Table VIA is applicable for the right ear only.  Under this table, the Veteran has level V hearing in the right ear.  Since Table VI gives the higher numeral, that numeral is applicable, and under 4.86(b) can be raised from VIII to IX.  Unfortunately, in this case the elevated numeral for the right ear under Table VI still does not support a compensable rating for bilateral hearing loss when matched with level I hearing for the left ear.
In reaching these conclusions, the Board has considered the Veteran’s lay statements.  As reported in the January 2013 VA audiological examination, the only impact on the ability to work is: “Just annoying that he has to ask people to repeat themselves.”  
The Board finds that the Veteran’s symptoms are squarely contemplated by the assigned noncompensable schedular rating, which already takes into account this disability’s impact in the average occupational setting, and there is nothing asserted that makes the Veteran’s circumstances so unique or exceptional as to warrant extraschedular consideration.  Also, there is no lay or medical evidence that the Veteran’s hearing loss results in marked interference with employment or frequent periods of hospitalization.  For these reasons, the Board finds that the Veteran’s hearing loss symptoms do not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.  Accordingly, the Board will not refer the Veteran’s claim for extraschedular consideration.
The evidence does not support additional staged ratings for any time period on appeal, and for no period would the Veteran be entitled to a higher rating under a different Diagnostic Code.
3. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type 2
In June 2013, the RO granted entitlement to service connection for diabetes mellitus type 2 at an initial rating of 20 percent under Diagnostic Code 7913 from February 3, 2012, the date that the Veteran filed his claim.  The Veteran is appealing the rating aspect of that decision.  Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed.  38 C.F.R. § 3.400(o).
Diagnostic Code 7913 provides compensation for diabetes mellitus.  38 C.F.R. § 4.119.  Under that code, a 10 percent rating is provided for diabetes mellitus requiring a restricted diet only.  Id.  A 20 percent rating is provided for diabetes mellitus requiring insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required.  Id.  A 40 percent rating is provided for diabetes mellitus requiring insulin, restricted diet, and regulation of activities.  Id.  A 60 percent rating is provided for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  Id.  A 100 percent rating is provided for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.  Id.  
Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913).  38 C.F.R. § 4.119.  Non-compensable complications are considered part of the diabetic process under Diagnostic Code 7913.  Id.  
“Regulation of activities” is defined as being required to “avoid[ ] strenuous occupational and recreational activities.”  38 C.F.R. § 4.119, Diagnostic Code 7913.  Medical evidence is required to support the “regulation of activities” criterion of a 40 percent disability rating.  Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007).   
The evidence is consistent with the current rating of 20 percent.  In the January 2013 VA diabetes examination, the Veteran states that his diabetes “has no effect on me, I don’t feel nothing.”  That examination contains no medical finding of regulation of activities and reports no episodes of ketoacidosis or hypoglycemic reactions.  Consistent with these findings, the Veteran’s subsequent filings contain no lay or medical evidence of regulation of activities, episodes of ketoacidosis, or episodes of hypoglycemia so as to support a rating of 40 percent or higher.  Because the preponderance of the evidence is against the existence of any symptoms that would support a rating of 40 percent or higher, the Veteran’s claim must be denied.  
The evidence does not support additional staged ratings for any time period on appeal, and for no period would the Veteran be entitled to a higher rating under a different Diagnostic Code.

REASONS FOR REMAND
1. Entitlement to service connection for chronic fungus infection of the feet is remanded.
A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006).  See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).
These elements are satisfied with regard to the claim of entitlement to service connection for chronic fungus infection of the feet.  Regarding the first element, the January 2012 private medical examination indicates a current diagnosis of foot fungus.  Regarding the second element, in the January 2012 private medical examination, the Veteran states that he was treated for a foot fungus during service.  Regarding the third and fourth elements, there is an indication that a current foot fungus could be related to an in-service skin disorder, but there is insufficient evidence of record by which the Board can make a decision.  As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion.  
2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, is remanded.
A January 2013 VA medical examiner concludes that the Veteran has depressive disorder but not PTSD.  The examiner does not opine as to whether or not the Veteran’s depressive disorder is at least as likely as not related to service.  An additional examination and opinion are therefore required.  

The matters are REMANDED for the following action:

1. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed chronic fungus infection of the feet.  The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions:
(a.) Whether the Veteran has any current or previously-diagnosed chronic fungus infection of the feet.
(b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed chronic fungus infection of the feet was incurred in the Veteran’s service.
In rendering these opinions, the examiner should consider the January 2012 private medical examination indicating in-service treatment for a skin disorder of the feet. 
The examiner should provide a complete rationale for any opinions offered.  If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so.
2. Provide an examination and obtain a medical opinion regarding the nature and etiology of any acquired psychiatric disorder, including but not limited to depressive disorder and PTSD.  The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions.  

(a.) Identify all acquired psychiatric disorders currently present.  

(b.) Offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that a current acquired psychiatric disorder, including PTSD and depressive disorder, had its onset in service or was otherwise caused by an in-service disease or injury. 

(c.) Offer an opinion as to whether it is at least as likely as not that a current acquired psychiatric disorder had its onset within one year of the Veteran’s discharge from his period of active service. 

(d.) If a diagnosis of PTSD is warranted, the examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that PTSD is due to exposure to an actual confirmed stressor or the fear of hostile military or terrorist activity.  Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the response to the event or circumstance involved the psychological or a psycho-physiological state of fear, helplessness, or horror.  
In rendering these opinions, the examiner should consider the January 2012 private medical record, in which the Veteran describes being near explosions that killed fellow servicemen.  
The examiner should provide a complete rationale for any opinions offered.  If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so.

 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Cannon, Associate Counsel 

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