Citation Nr: 1110728 Decision Date: 03/17/11 Archive Date: 03/30/11 DOCKET NO. 06-35 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for diabetes mellitus, including as related to herbicide exposure. 3. Entitlement to service connection for coronary heart disease, including as related to herbicide exposure and as secondary to diabetes mellitus. 4. Entitlement to service connection for hypertension, including as secondary to diabetes mellitus. 5. Entitlement to service connection for peripheral neuropathy, including as secondary to diabetes mellitus. 6. Entitlement to service connection for impotence, including as secondary to diabetes mellitus. 7. Entitlement to service connection for cataracts, including as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1966. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2006 rating decision by the Denver, Colorado Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for tinnitus, diabetes mellitus, coronary heart disease, hypertension, peripheral neuropathy, impotence, and cataracts. The Veteran had a hearing in March 2006 before an RO Decision Review Officer. He had a Travel Board hearing in September 2008 before the undersigned Veterans Law Judge. The case was previously before the Board in January 2009 and November 2009, when it was remanded for additional development. The United States Court of Appeals for Veterans Claims (Veterans Court) has ruled that the Board has a duty under law to ensure that the RO complies with remand orders of the Board or the Court. Stegall v. West, 11 Vet. App. 268 (1998). The RO has taken actions in response to the Board's remand instructions, but has not fulfilled all of the remand instructions. Therefore, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he has tinnitus as a result of noise exposure during service, diabetes mellitus as a result of herbicide exposure during service, and coronary heart disease, hypertension, peripheral neuropathy, impotence, and cataracts as secondary to diabetes mellitus. The Veteran essentially contends that his has tinnitus that is attributable to noise exposure during service, or to his service-connected hearing loss. In January 2009 and again in November 2009, the Board remanded the claim seeking a VA medical opinion as to the likelihood that current tinnitus is related to service or to service-connected hearing loss. Following both remands, a VA audiologist provided the opinion that the periods of ringing in the ears that the Veteran described were too brief to warrant a diagnosis of tinnitus. On examinations, the Veteran has reported episodes of ringing lasting only a few seconds. In statements in support of his claim, he has stated that the ringing in his ears is constant when he removes his hearing aids. Indeed, even the last VA examination noted he had it on a daily basis, just for very brief periods of time. "Tinnitus" is "noise in the ears such as ringing, buzzing, roaring, or clicking." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1725 (27th ed.1988). The examiner's opinion suggests that the Veteran had tinnitus, but his tinnitus was not significant enough to warrant a diagnosis of tinnitus. Therefore, the Board will remand the tinnitus issue again, for a VA medical opinion by a different examiner, to determine whether the Veteran's claimed tinnitus is related to service or his service connected bilateral hearing loss. The Veteran is also claiming service connection for diabetes as due to exposure to Agent Orange. Under certain circumstances, service connection for specific diseases, including type II diabetes mellitus and ischemic heart disease, may be presumed if a veteran was exposed during service to certain herbicides, including Agent Orange. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309(e) (2010), as amended by 75 Fed. Reg. 52,202 (Aug. 31, 2010). The record reflects the Veteran served from November 1964 to July 1966 aboard the USS Vega, a refrigerator ship that carried and distributed food supplies to service vessels and stations. The Veteran reports that, during his service aboard the Vega, the ship operated at times in the waters off of Vietnam, and sometimes docked in port in Vietnam. He states that on at least one occasion he went ashore in Vietnam, in Da Nang. He contends this occurred in approximately July 1965. The National Personnel Records Center indicated that the USS Vega was in the official waters of Vietnam from July 25, 1965 to August 1, 1965; from August 12, 1965 to August 20, 1965; September 5, 1965 to September 17, 1965; February 20, 1966 to February 27, 1966; from March 9, 1966 to March 16, 1966; and from April 1, 1966 to April 6, 1966. Of record is a ship history pertaining to the USS Vega. It reflects that during the time the Veteran was assigned to this ship, it participated in Fleet operations off the coast of Vietnam. There is a reference to in-port replenishments, but it is not clear if this occurred while the Veteran was still in service. Thus, it is not readily apparent from the record whether the Veteran served or visited within the land borders of Vietnam, including the inland waterways, during his service. In the November 2009 remand, the Board instructed the RO to request ship's logs for the USS Vega. It does not appear that such was accomplished. Therefore, the Board will again remand the case to obtain additional evidence on the question of claimed service in Vietnam. In addition, as his claims for service connection for coronary artery disease, hypertension, peripheral neuropathy, impotence, and cataracts are contingent upon a finding of service in Vietnam or the claim for service connection for diabetes, those issues must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA ear examination, by an examiner different from the one who conducted the May 2009 examination, to obtain an opinion as to whether the Veteran's reported tinnitus is related to service or service-connected bilateral hearing loss. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should express an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that currently reported tinnitus is causally related to service, or is proximately due to or the result of service-connected bilateral hearing loss. 2. Request ship logs through official sources for the USS Vega for the periods from July 25, 1965 through September 17, 1965; and February 20, 1966 through April 6, 1966, when the USS Vega was in the official waters of Vietnam to attempt to corroborate whether the USS Vega docked in Vietnam during the Veteran's service or transported people from the ship to shore. If no records are available, the Veteran should be notified of such. All attempts to obtain such records should be documented in the claims file. 3. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If the benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, return the case to the Board for appellate review, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matters that 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 Supp. 2010). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).