HEARING LOSS

L. M. BARNARD · 2026 · Case ID: 26005076

MIXED

Summary

The Veteran, who served from August 1972 to July 1977 and July 1977 to August 1992, appeals a January 2017 rating decision. The Veteran initially appealed the denial of a compensable rating for left ear hearing loss but withdrew this appeal. The primary issues on appeal were the rating for diabetes mellitus (DM) and entitlement to Total Disability based on Individual Unemployability (TDIU). The Board granted a 40 percent rating for DM, effective May 18, 2016, finding that while the Veteran's DM required insulin and diet regulation, it did not meet the criteria for higher ratings due to lack of hospitalizations or progressive weight loss. The Board denied a rating higher than 40 percent, finding the Veteran's symptoms and occupational limitations were contemplated by the current rating and did not warrant an extraschedular rating. However, resolving reasonable doubt in the Veteran's favor, the Board granted a TDIU effective May 18, 2016, based on a vocational expert's opinion that the Veteran's combined service-connected disabilities, including DM, back, hip, thigh, and hearing conditions, prevented substantially gainful employment. The Board also granted entitlement to Dependents' Educational Assistance (DEA) benefits, effective May 18, 2016, due to the TDIU. Finally, service connection for hypertension secondary to DM was granted, based on multiple VA medical opinions stating DM can cause and aggravate hypertension.

Rationale

Veteran withdrew appeal; Board dismissed issue

Special Benefit

TDIU

Docket No.

18-41 701A

Full Decision Text

Citation Nr: 26005076
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 18-41 701A
DATE: April 29, 2026

ORDER

The issue of entitlement to a compensable rating for service-connected left ear hearing loss is dismissed.

A 40 percent rating for service-connected diabetes mellitus type II ("DM") is granted, effective May 18, 2016.

A rating greater than 40 percent for service-connected DM is denied from May 18, 2016, to the present.

A total disability evaluation based on individual unemployability is granted, effective May 18, 2016.

Entitlement to Dependents' Educational Assistance ("DEA") benefits is granted, effective May 18, 2016.

Service connection for hypertension secondary to service-connected DM is granted.

FINDINGS OF FACT

1. On February 27, 2025, the Veteran clearly and unambiguously withdrew his August 2018 appeal of a January 2017 rating decision denying a compensable rating for service-connected left ear hearing loss. Accordingly, the appeal is dismissed as to that issue only.

2. From May 18, 2016, to the present, the Veteran's service-connected DM required one or more daily injection of insulin, restricted diet, and regulation of activities, but did not manifest with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider.

3. Resolving reasonable doubt in the Veteran's favor, his service-connected disabilities prevented him from securing or following substantially gainful employment from May 18, 2016, to the present.

4. From May 18, 2016, to the present, the Veteran's TDIU constitutes a permanent total service-connected disability for purposes of establishing entitlement to DEA benefits.

5. Resolving reasonable doubt in the Veteran's favor, his hypertension was caused and/or aggravated by his service-connected DM.

CONCLUSIONS OF LAW

1. The criteria to dismiss the appeal of the August 2018 appeal of a January 2017 rating decision denying a compensable rating for service-connected left ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for a 40 percent rating for service-connected DM were met, effective May 18, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code ("DC") 7913.

3. The criteria for a rating greater than 40 percent for service-connected DM were not met from May 18, 2016, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, DC 7913.

4. The criteria for a TDIU due to service-connected disabilities were approximated from May 18, 2016. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (a).

5. The criteria for DEA benefits were met, effective May 18, 2016. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400, 3.807.

6. The criteria to establish service connection for hypertension secondary to service-connected DM have been met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from August 1972 to July 1977, and July 1977 to August 1992.

This matter is on appeal from a January 2017 rating decision by a VA Regional Office ("RO"). The Veteran perfected a timely appeal in August 2018.

In December 2024, the Board of Veterans' Appeals ("Board") remanded the claims to the RO to complete additional development consistent with a December 2023 Joint Motion for Partial Remand ("JMPR"). The Board directed the RO to assist the Veteran with obtaining outstanding VA and non-VA medical records, schedule a VA audiological examination, obtain a medical opinion addressing service connection for hypertension, and ask the Veteran to complete a TDIU application ("VA Form 21-8940").

The RO obtained updated VA medical records in October 2025. In February
This matter is on appeal from a January 2017 rating decision by a VA Regional Office ("RO"). The Veteran perfected a timely appeal in August 2018.

The RO obtained updated VA medical records in October 2025. In February 2025, the Veteran submitted his complete private (non-VA) medical records and indicated he was unaware of any outstanding relevant medical records. Accordingly, VA satisfied its duty to assist the Veteran in obtaining his medical records and complied with the December 2024 Board remand and December 2023 JMPR.

In February 2025, the Veteran explicitly and unambiguously indicated that he wished to withdraw his August 2018 appeal of the January 2017 rating decision denying a compensable rating for service-connected left ear hearing loss. Accordingly, the Board does not have jurisdiction to review that issue, and the appeal is dismissed as to that issue only. See 38 C.F.R. § 20.205.

As outlined below, service connection for hypertension secondary to service-connected DM will be granted. The December 2023 JMPR and December 2024 Board remand directives regarding that issue are moot.

INCREASED RATINGS

VA assigns disability ratings by applying criteria in its Schedule for Rating Disabilities ("the Rating Schedule"). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question of which two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).

VA will assign a higher disability rating when the evidence supports the claim, or when the evidence for and against the claim is approximately balanced. When the evidence is approximately balanced, VA will resolve any reasonable doubt in favor of the Veteran. When the evidence is not approximately balanced, there is no reasonable doubt to resolve, and the claim will be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3rd 1391 (2021).

1. A 40 percent rating for service-connected DM is granted, effective May 18, 2016.

2. A rating greater than 40 percent for service-connected DM is denied from May 18, 2016, to the present.

For purposes of evaluating the Veteran's DM, the rating period began May 18, 2016, the date VA received his intent to file an increased rating claim.

The Veteran's DM was rated 20 percent from May 18, 2016, to August 2, 2017, and 40 percent thereafter. He contends that a 40 percent (or higher) rating was warranted for the entire rating period.

DM is rated under DC 7913, which provides:

A 20 percent rating for DM requiring one or more daily injection of insulin and restricted diet, or oral hypoglycemic agent and restricted diet.

A 40 percent rating for DM requiring one or more daily injection of insulin, restricted diet, and regulation of activities.

A 60 percent rating for DM requiring one or more daily injection of 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.

A 100 percent rating for DM requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational
20 percent rating for DM requiring one or more daily injection of insulin and restricted diet, or oral hypoglycemic agent and restricted diet.

A 40 percent rating for DM requiring one or more daily injection of insulin, restricted diet, and regulation of activities.

A 100 percent rating for DM requiring more than one daily injection of insulin, restricted diet, and regulation 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.

38 C.F.R. § 4.119, DC 7913.

The criteria in DC 7913 are "successive." To qualify for a higher rating, each of the criteria for the lower rating(s) must also be met. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013).

The term "regulation of activities" referenced in the criteria for 40, 60, and 100 percent ratings means "avoidance of strenuous occupational and recreational activities." See Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Medical evidence is required to establish that DM requires regulation of activities. Id. at 364.

DC 7913 was amended effective December 10, 2017. Before the amendment, the rating criteria only referenced "insulin." The amended criteria require "one or more daily injection" of insulin. See 82 Fed. Reg. 50802 (November 2, 2017).

Compensable diabetic complications are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable diabetic complications are considered part of the diabetic process. 38 C.F.R. § 4.119, DC 7913 (Note 1).

As an initial matter, the Veteran credibly reports that, for the entire appeal period (i.e., from May 18, 2016, to the present), his DM caused "unpredictable fatigue," due to blood sugar fluctuations, and a non-VA medical provider opined that the Veteran must avoid strenuous activity/exercise due to his DM. See November 2024 Vocational Report; September 2016 Disability Benefits Questionnaire.

The Board will resolve the reasonable doubt in the Veteran's favor and grant a 40 percent rating, effective May 18, 2016.

However, the evidence weighs heavily against assigning a rating greater than 40 percent at any point during the appeal.

The Veteran does not contend, nor do his medical records show, episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. See 38 C.F.R. § 4.119, DC 7913, above (outlining criteria for 60 and 100 percent ratings for DM).

At August 2017, March 2025, and October 2025 VA diabetes examinations, and at August 2016 and September 2016 non-VA examinations, the Veteran denied visiting his diabetic care provider and/or being hospitalized for episodes of ketoacidosis or hypoglycemia in the past 12 months. The examiners opined that the Veteran did not have progressive unintentional weight loss or loss of strength due to DM.

The Veteran's non-VA medical records (including from his diabetic care provider) do not show visits or hospitalizations for episodes of ketoacidosis or hypoglycemia. The Veteran's diabetic care provider routinely opined that his diabetes was "uncomplicated" and "well-controlled" by insulin.

Further, the Veteran's recorded diabetic complications during the appeal were peripheral neuropathy, which is separately compensated, and hypertension (for which secondary service connection is granted, below).

For these reasons, the criteria for a 60 or 100 percent rating under DC 7913 were not met, and a rating higher than 40 percent is not warranted at any point during the rating period. See DC 7913, Middleton, above.

The Veteran contends that an extraschedular rating is warranted because of his "unpredictable fatigue" due to DM. See Veterans Application for Increased Compensation Based on Unemployability ("VA 21-8940"), received February 27, 2025.

A higher rating may be
-controlled" by insulin.

A higher rating may be awarded on an "extraschedular" basis if the evidence shows an exceptional or unusual disability picture, which may include marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). "Marked interference" means "a loss of earning capacity that is less severe than one where the veteran is totally unemployable." Thun v. Peake, 22 Vet. App. 111, 117 (2008).

The fact that circumstances specific to a particular veteran may cause the effects of a service-connected disability to be more profound in that veteran's case does not ordinarily provide a basis for extraschedular consideration. Rather, the impairment must be one that is so unusual as to be unanticipated by the rating criteria. See 38 C.F.R. § 3.321(b)(1); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

The record does not show an "exceptional or unusual" disability picture such that applying the Rating Schedule is impractical. As noted above, the Veteran's DM is controlled by insulin and diet, "uncomplicated" (except for peripheral neuropathy/hypertension, which are separately compensated), and did not require any periods of hospitalization (let alone frequent hospitalizations).

The Board considered the Veteran's assertion that his DM would require him to take unscheduled breaks at work to monitor blood sugar/diet, and to occasionally rest due to fatigue. These symptoms and their corresponding occupational impairment are contemplated by the Veteran's current 40 percent rating under DC 7913 and are not "unusual or exceptional" for people with diabetes.

Accordingly, referral for (or assignment of) an extraschedular rating is not warranted. See 38 C.F.R. § 3.321(b)(1); Thun; see also Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (noting that the Thun "steps are, in fact, elements that must be established before an extraschedular rating can be awarded").

For the reasons above, a 40 percent rating for service-connected DM is granted, effective May 18, 2016.

The evidence weighs heavily against assigning a rating greater than 40 percent at any point during the rating period, to include on an extraschedular basis. In that regard, the evidence is not approximately balanced and there is no reasonable doubt to resolve. Lynch.

A TDIU is granted, effective May 18, 2016.

A TDIU is already in effect from August 2, 2017. The Veteran contends that a TDIU is warranted from May 18, 2016, the date of his increased rating claim.

The claim will be granted based on the benefit of the doubt doctrine.

VA may assign a TDIU to veterans who are unable to secure or follow substantially gainful employment because of their service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more disabilities, one disability must be rated 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). These requirements are referred to as "schedular criteria" for a TDIU.

With the above grant of a 40 percent rating for service-connected DM, the Veteran now meets schedular criteria for a TDIU effective May 18, 2016. The remaining question is whether his service-connected disabilities prevented him from securing or following substantially gainful employment from that date.

The Veteran completed high school and one year of college. He worked as a bus driver until July 2013.

In November 2024, a vocational expert (A.S.) opined that the Veteran's service-connected low back, hip, and thigh disorders cause difficulty with sitting, walking, and standing, and would prevent him from performing a sedentary job. A.S. opined that the Veteran would be distracted by pain at least every two (2) hours, require frequent breaks/positional changes, and as a result would be unable to meet an employer's expectations of pace and productivity. He opined that the Veteran's hearing loss/tinnitus cause difficulty hearing conversation speech, especially in environments with background noise, such as an office. A.S. further opined that the Veteran's DM causes "unpredictable fatigue" due to blood sugar changes and would additionally limit his ability to stay on task at work.

A.S.'s opinion is persuasive because it was based on a thorough review of the Veteran's medical and vocational history. There is no opinion to the contrary.

Any reasonable doubt will be resolved in the Veteran's favor, and a TDIU is granted from May 18, 2016.

May 18, 2016 is the date VA received the Veteran's increased rating claim and the earliest effective date allowed by law for a TDIU. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i); see also Rice v. Shinseki, 22 Vet. App. 447 (2009).

Entitlement to DEA benefits is granted, effective May 18, 2016.

VA may award DEA benefits to veterans discharged from service under conditions other than dishonorable, or died in service, that either (1) have a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807.

To the extent feasible, the effective date for DEA benefits corresponds to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113.

As outlined above, a TDIU is warranted from May 18, 2016. The TDIU constitutes a "permanent total service-connected disability" for purposes of establishing DEA benefits. Accordingly, entitlement to DEA benefits is granted, effective May 18, 2016.

Service connection for hypertension secondary to service-connected DM is granted.

VA grants service connection for disabilities resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "Direct" service connection requires: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus (a causal link) between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge may still be service connected if the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

A veteran may establish service connection on a "secondary" basis for a non- service-connected disability that was caused by a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See
2004)). Disorders diagnosed after discharge may still be service connected if the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

A veteran may establish service connection on a "secondary" basis for a non- service-connected disability that was caused by a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Service connection for hypertension based on the PACT Act has been in effect since August 10, 2022. The Veteran contends that service connection is warranted based on a direct or secondary basis, resulting in an earlier effective date.

Multiple VA clinicians have opined that the Veteran's hypertension was caused and/or aggravated by his service-connected DM. See September 2025, December 2025, and February 2026 VA medical opinions. These clinicians opined that DM "directly fuel[s]" hypertension and can be both cause and aggravate the condition.

The Board will resolve reasonable doubt in the Veteran's favor and grant service connection for hypertension secondary to DM. 38 C.F.R. § 3.310.

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Hiaasen

The Board's action is only binding on this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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