Citation Nr: 1603665 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-09 494 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral glaucoma, to include as secondary to herbicide exposure and/or diabetes mellitus, type II. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure and/or diabetes mellitus, type II. 4. Entitlement to service connection to diabetes mellitus, type II, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from September 1968 to August 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran later testified before the undersigned in June 2015. A transcript of that hearing is of record. The Veteran's tinnitus claim has been variously characterized as "tinnitus" and "tinnitus, to include the right ear." Because the term "tinnitus" encompasses both ears (including the right ear), the Board has framed the Veteran's claim as simply "tinnitus," as reflected above. The issues of entitlement to service connection for bilateral glaucoma and hypertension are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's diagnosed diabetes mellitus, type II, is presumed to have been caused by his in-service herbicide exposure. 2. Competent and credible evidence establishes that the Veteran has experienced tinnitus since his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, as secondary to herbicide exposure, have been met. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2015). The elements of a valid claim for direct service connection are: (1) competent and credible evidence of a current disability; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the current disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. In these latter circumstances, a showing of continuity of symptomatology since service is required to support the claim. 38 C.F.R. § 3.303(b) (2015). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a) . Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C.A. § 1110 (West 2014); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, Veterans are presumed to have been exposed to dioxin-based chemical herbicides if the facts establish that their service was within the territorial confines of the Republic of Vietnam during the Vietnam War Era, or otherwise involved duty or visitation in the Republic of Vietnam. Such service must be either "foot-on-ground" service or service on the inland waterways in the interior of the Republic of Vietnam ("brown water service" versus "blue water service"). See 38 C.F.R. § 3.307(a)(6)(iii) (2015); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. If exposure to chemical herbicides is established, certain diseases, including diabetes mellitus, type II, are presumed to be due to chemical herbicide exposure. 38 C.F.R. § 3.309(e) (2015). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102 (2015). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. I. Diabetes Mellitus, Type II As an initial point, the Veteran is not claiming direct service connection for diabetes mellitus, type II, bilateral glaucoma, and/or hypertension. Indeed, there were no complaints of any of those conditions shown in the service treatment records (STRs). The Veteran's August 1972 separation physical did not find any of the above-mentioned conditions to be present. As such, the Veteran's claim turns on whether he can establish exposure to herbicides while in active service. In this regard, the Veteran's service personnel records show that he served aboard the U.S.S. Ticonderoga. The records do not explicitly show that the Veteran set foot in the Republic of Vietnam. However, the Veteran has reported multiple times, and has also testified in his June 2015 hearing before the Board, that while stationed on the U.S.S. Ticonderoga, the Veteran serviced helicopters after they landed on the ship back from their missions on the Vietnam mainland. The Veteran related that one of his tasks as a radioman was to transpose the crypto codes on the radio communication devices on aircrafts, including rescue helicopters. The devices were located on the undercarriage of the aircrafts, and the Veteran handled the devices on a daily basis and indicated that he was exposed to the multitude of debris on the bottom of the helicopters, which came from the aircraft landing in Vietnam jungles. See January 12, 2006, Veteran statement. He reported that the helicopters were sometimes washed off before the Veteran serviced them, but that often the landing gear and the bottoms of the helicopters were covered in leaves, dirt, and other debris, all of which the Veteran came into contact with when he changed the codes. The Veteran is competent to report the geographical locations where he was stationed during his service, and to report what his duties were while he was in service. He has presented credible oral and written testimony that, during his posting on the U.S.S. Ticonderoga, he regularly serviced helicopters which were still covered with debris they brought over from the mainland, and that he came into direct physical contact with that debris on a daily basis. Here, the Board notes that an interim final rule has been issued which speaks to individuals who served and maintained aircraft used to spray herbicides in Vietnam. New paragraph 38 C.F.R. § 3.307(a)(6)(v) states, "An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, 'regularly and repeatedly operated, maintained, or served onboard C-123 aircraft' means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service." The Veteran has credibly testified to repeatedly maintaining helicopters that were covered with leaves, dirt, and other debri from areas in Vietnam that would have likely been cleared by Agent Orance, and it would therefore be improper for the Board to draw a distinction between a Veteran who maintained a plane which was used to spray herbicide and a Veteran who maintained helicopters which were likely covered in herbicide and contaminated debris (the helicopters were likely exposed to herbicide as they landed in Vietnam, then returning to the ship where the Veteran serviced them covered in soil and foliage). Therefore, giving the benefit of the doubt, the Board finds that the Veteran is presumed to have been exposed to herbicides during his active service. VA medical records associated with the Veteran's claims file establish that he has a current diagnosis of diabetes mellitus, type II. As the regulations recognize this disease as being presumptively associated with exposure to dioxin-based chemical herbicides (see 38 C.F.R. § 3.309(e)), the Veteran's claim for service connection for diabetes mellitus is therefore granted. Any doubt that exists with regard to the merits of the Veteran's claim is resolved in his favor. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Tinnitus The Veteran asserts that he has tinnitus as due to active service hazardous noise exposure. He served as a radioman aboard the U.S.S. Ticonderoga, he asserts that he was exposed to loud noise in his living quarters (which were right below the flight deck) and while working on and around aircraft. Specifically, the Veteran has stated that the hydraulic system which pulled the arresting cables in and out when the aircraft landed and took off was located about 10 feet from his bunk, and that he slept in that bunk for over two years. He also asserts that he was exposed to hazardous noise when working in the teletype room. The Board finds the Veteran's account credible and consistent with the circumstances of his service, and concedes in-service hazardous noise exposure. 38 U.S.C.A. § 1154(a) (West 2014). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2015). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2015). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's service treatment records (STRs) do not show any complaints of tinnitus. On an October 2005 private audiology examination related that the Veteran had a history of tinnitus. In his Board hearing testimony and several lay statements, the Veteran related that he was exposed to the hazardous noise aboard the U.S.S. Ticonderoga. He stated that his tinnitus started while he was in active service. The Veteran has also reported that he was not exposed to hazardous noises after separation from active service, as he worked as a teacher for decades. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The Federal Circuit held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) that the Board errs when it suggests that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. In this case, the Veteran is competent to describe his in-service recollections of tinnitus and his current manifestations of tinnitus because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Board also finds the lay statements in evidence credible. The Veteran's statements are consistent with each other, and with other evidence of record, such as the evidence of the circumstances of the Veteran's service. Despite not being buttressed by contemporaneous medical evidence, the statements attest to the continuity of the Veteran's tinnitus symptomatology, and the Board finds them both assertive and persuasive. The Board also notes that the Veteran is competent to report that he experienced ringing in his ears, which is the clinical feature of tinnitus, starting in service, and that it has continued after separation from service. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board finds that the Veteran's statements as to onset of tinnitus in service and the persistence of ringing in his ears since that time are consistent and credible, and the Board finds that the Veteran's lay statements are sufficient to establish service connection for tinnitus under these circumstances. In any event, the Board finds that the evidence is, at a minimum, at least in equipoise. In light of the credible lay evidence of tinnitus in service, continuity of symptoms since service, evidence linking the disability to noise exposure, and resolving any doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2015). ORDER Entitlement to service connection for diabetes mellitus, type II, as secondary to herbicide exposure, is granted. Entitlement to service connection for bilateral tinnitus is granted. REMAND The Veteran also seeks service connection for bilateral glaucoma and hypertension, both to include as caused by herbicide exposure and as secondary to diabetes mellitus. In this case, the Veteran separated from service in 1972, but his eye issues and hypertension did not manifest for a number of years thereafter. However, the medical record is not clear whether the Veteran's bilateral glaucoma and hypertension are related to his diabetes and/or have independently resulted from his herbicide exposure. As such, the Veteran must be afforded a VA examination to determine the etiology of his claimed disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination(s) with the appropriate examiner(s) to determine whether any diagnosed glaucoma and hypertension are related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies should be accomplished. All electronic records must be made available to the examiner(s), and the examiner(s) must specify in the examination report(s) that these records have been reviewed. A complete rationale for all opinions must be provided and the examiner(s) must include a discussion of the specific evidence on which the opinions are based. If the VA examiner(s) is unable to provide the requested opinions without resorting to speculation, the examiner(s) 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); by a deficiency in the record (i.e., additional testing or information is required); or by the examiner(s) (i.e., the provider does not have the requisite knowledge or training to formulate such an opinion). The examiner(s) should opine on the following: a) Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, state whether it is at least as likely as not (a 50 percent probability or more) that any currently or previously diagnosed bilateral glaucoma is related to the Veteran's active duty service, to include as due to exposure to herbicides, or to his service-connected diabetes mellitus, type II. b) Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, state whether it is at least as likely as not (a 50 percent probability or more) that any currently or previously diagnosed hypertension is related to the Veteran's active duty service, to include as due to exposure to herbicides, or to his service-connected diabetes mellitus, type II. 2. Thereafter, readjudicate the Veteran's claims. If any benefit sought is not granted, furnish the Veteran and his representative a SSOC, affording them the requisite response time, and then return the claims to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michal J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs