Citation Nr: 1220650	
Decision Date: 06/13/12    Archive Date: 06/22/12

DOCKET NO.  11-19 894	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for Type II diabetes mellitus (claimed as due to herbicide exposure).

 4.  Entitlement to service connection for Type II diabetes mellitus.

5.  Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for diabetic retinopathy (claimed as due to herbicide exposure).  

6.  Entitlement to service connection for diabetic retinopathy.

7.  Entitlement to service connection for a prostate disorder, claimed as due to herbicide exposure.

8.  Entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity.

9.  Entitlement to service connection for diabetic neuropathy of the left upper extremity.


REPRESENTATION

Appellant represented by:	Guam Office of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran appellant had active service in the United States Air Force from January 1955 to February 1967.  This case comes before the Board of Veterans' Appeals (Board) from appeal from a February 2010 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO.  

Service connection for bilateral hearing loss, Type II diabetes mellitus and diabetic retinopathy was originally denied in a July 2008 rating decision.  The Veteran was notified of the denial that same month, but he did not appeal.  The July 2008 rating decision, therefore, represents the last final action on the merits of the service connection claims for bilateral hearing loss, Type II diabetes mellitus and diabetic retinopathy.  Glynn v. Brown, 6 Vet. App. 523 (1994).  The July 2008 rating decision also represents the last final decision on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  Thus, the Board must consider whether any of the evidence submitted since the July 2008 rating decision constitutes new and material evidence.

As reflected in the February 2010 rating decision and the June 2011 Statement of the Case (SOC), the RO addressed the bilateral hearing loss, Type II diabetes mellitus (DM) and diabetic retinopathy issues on the merits after a de novo review of each claim.  However, before reaching the merits of these three claims for service connection, the Board must first rule on the matter of the reopening of each claim.  That is, the Board has a jurisdictional responsibility to consider whether it is proper for each claim to be reopened.  See Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  The new and material evidence issues on appeal are therefore as listed on the first page of the present decision.

The issue of entitlement to service connection for DM is addressed in the REMAND portion of the decision below.  The appellant's claims for service connection for diabetic retinopathy and diabetic peripheral neuropathy of the upper extremities are secondary service connection claims, in that he argues that the retinopathy and the upper extremity peripheral neuropathy are causally or etiologically due to his DM.  Thus, the issue of whether the claim for service connection for diabetic retinopathy should be reopened and the issue of whether service connection for diabetic peripheral neuropathy of the upper extremities is warranted must also be remanded because these issues are inextricably intertwined with the DM claim.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined).  Therefore, all four of these issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.





FINDINGS OF FACT

1.  The appellant's claim of entitlement to service connection for bilateral hearing loss was originally denied in a July 2008 rating and the appellant did not appeal that rating decision.

2.  The evidence received since the final unfavorable rating decision of July 2008, when considered with previous evidence, relates to an unestablished fact necessary to substantiate the appellant's bilateral hearing loss claim and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss.

3.  The evidence for and against the appellant's service connection claim is at least in relative equipoise on the question of whether his currently diagnosed bilateral hearing loss is related to acoustic trauma he experienced in service.

4.  The appellant's claim of entitlement to service connection for Type II diabetes mellitus was originally denied in a July 2008 rating and the appellant did not appeal that rating decision.

5.  The evidence received since the final unfavorable rating decision of July 2008, when considered with previous evidence, relates to an unestablished fact necessary to substantiate the appellant's Type II diabetes mellitus claim and raises a reasonable possibility of substantiating the claim for service connection for Type II diabetes mellitus.

6.  The appellant's service medical records contain no findings or diagnoses of any chronic prostate disorder.

7.  There is no competent medical evidence of any nexus between the appellant's claimed prostate disorder (benign prostatic hypertrophy) and any aspect of his military service.

8.  The preponderance of the competent and probative evidence is against a finding that the appellant has a prostate disorder (benign prostatic hypertrophy) that is due to any incident or event in military service, or that any such disorder was manifested to a degree of ten percent or more within one year after service separation.


CONCLUSIONS OF LAW

1.  The criteria for reopening the claim of entitlement to service connection for bilateral hearing loss have been met..  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2011).

2.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2011).

3.  The criteria for reopening the claim of entitlement to service connection for Type II diabetes mellitus have been met.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2011).

4.  The criteria for service connection for a prostate disorder, including benign prostatic hypertrophy, to include as presumptively due to Agent Orange exposure, have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(a) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In connection with the hearing loss claim, the Board is granting in full the benefits sought on appeal (reopening the claim and granting service connection).  The Board is also reopening the diabetes claim.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless as to these two claims and will not be further discussed.  

Turning to the prostate disorder claim, the Veteran received appropriate notification prior to the initial unfavorable agency decision through an August 2009 notice letter.  The duty to notify the Veteran was satisfied.  38 U.S.C.A. § 5103.

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The appellant's service treatment records and all relevant post-service medical treatment records identified by the Veteran have been associated with the claims file.  He had previously been given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations.

VA also has a duty to provide a medical examination and/or seek a medical opinion when such examination or opinion is necessary to make a decision on the claim.  VA considers an examination or opinion necessary to make a decision on the claim if the evidence of record (1) contains competent evidence that the claimant had a disability, or persistent recurring symptoms of disability; (2) indicates the disability or symptoms may have been associated with his military service; and (3) contains insufficient medical evidence for VA to make a decision on the claim.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  


There is no evidence of record that establishes that the appellant was treated for any prostate disorder during service and there is no competent medical evidence that indicates that his currently diagnosed benign prostatic hypertrophy (BPH) may be associated with his military service, including as due to exposure to herbicides.  In addition, BPH has not been presumptively associated with exposure to any tactical herbicide.  

The appellant maintains that his current prostate condition is linked to his service, but there is no evidence of record to establish that the appellant has the medical expertise that would render competent his statements as to the etiology of any current disorder.  The record does not establish that the appellant or his representative has the medical knowledge or expertise to render such an opinion.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  These lay statements are insufficient to trigger VA's duty to provide an examination; VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement.  Accordingly, the appellant was not afforded an examination in connection with his claim for a prostate disorder diagnosed as benign prostatic hypertrophy.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004).

The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist; and a remand would serve no useful purpose.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159;  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).

II.  The Merits of the Claims

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A.  New and Material Evidence Claims

Decisions of the Board are final, as are unappealed rating actions of the RO.  38 U.S.C.A. §§ 7104, 7105.  In order to reopen a claim there must be added to the record "new and material evidence."  38 U.S.C.A. § 5108.  

New and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).  A claim becomes final and subject to a motion to reopen only after the appeal period has run; interim submissions before finality must be considered as part of the original claim pursuant to 38 C.F.R. § 3.156(b).  Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007).  The Veteran's claims of entitlement to service connection for bilateral hearing loss and Type II DM were initially denied by a July 2008 rating decision which became final.  38 C.F.R. § 20.1103.  This is so because the appellant did not appeal the rating decision within the time period allowed and because he did not submit any additional evidence or statements concerning his two claims within the one-year appeal period either.  Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).

The July 2008 rating decision is also the last time the appellant's hearing loss and DM claims were finally disallowed on any basis; that rating decision is final and may not be reopened in the absence of new and material evidence.  38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a).  Therefore, the appellant's claims may be reopened only if new and material evidence has been secured or presented since the July 2008 rating decision.  See Glynn v. Brown, 6 Vet. App. 523 (1994).

The pertinent regulations require that evidence raise a reasonable possibility of substantiating a claim in order to be considered "new and material," and define material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  The appellant's claim for service connection for bilateral hearing loss was denied in essence because his service medical records did not indicate that any hearing loss condition existed during service or within one year of service separation; any new and material evidence must relate to this.  The appellant's Type II DM claim was denied in part because the appellant had not provided evidence demonstrating that he had been exposed to herbicides at Andersen Air Force Base on Guam.

The credibility of the evidence is presumed for the purpose of reopening.  Justus v. Principi, 3 Vet. App. 510 (1992).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

The evidence considered by the RO in making its July 2008 decision included the appellant's DD Form 214; his service medical treatment records; and his February 2008 application for benefits.  The appellant's service medical treatment records do not reflect any complaints of, or treatment for, any hearing disorder or diabetes.  In October 1966, the appellant underwent a separation examination and no hearing loss or endocrine disorder was noted.  There is no medical evidence of record dated between 1967 and December 2006.

The evidence added to the record subsequent to the issuance of the July 2008 rating decision includes written statements from the appellant; a copy of his Air Force Form 7; private treatment records dated between 2006 and 2010; copies of newspaper articles relating to Guam; the report of a May 2011 VA examination; and responses from the National Personnel Record Center.

Review of the private medical evidence added to the record reveals that the appellant underwent a private audiometric examination in February 2008.  At that time, he reported having a longstanding history of noticeable hearing loss that had worsened over the prior ten years.  He also mentioned his exposure to excessive and prolonged aircraft noise during his military service.  The puretone test results revealed a bilateral mild to moderately severe high frequency hearing loss.  The examiner opined that the appellant's hearing loss was likely due to his noise exposure during his military service.  In May 2010, the appellant underwent another evaluation by the same examiner who again opined that the appellant's current bilateral high frequency hearing loss was likely due to his in-service noise exposure as his post-service noise exposure was unremarkable and there was no report of disease, injury or family history that could account for the hearing loss.

The evidence of record also includes a written statement from the appellant's private treating physician, dated in June 2010.  The doctor stated that the appellant had complained of having problems with poor hearing which the physician attributed to the appellant's military service.  The doctor also stated that the appellant had been diagnosed with Type II DM.

The appellant has submitted newspaper articles dated in 2007, 2009, 2010, and 2011.  These articles discussed the use of herbicides such as Agent Orange at Andersen Air Force Base during the 1960s.  Guam was described as having been a storage facility for Agent Orange during the Vietnam War era and reference was made to a June 2005 report by CBS News that Agent Orange had been sprayed on Guam from 1955 through the 1960s.  The articles also referred to a 1991 Dow Chemical report that confirmed dioxin contamination at Andersen Air Force Base and a 2003 soil study that demonstrated continued presence of dioxin in the soil there.  The appellant has stated that he worked near where the herbicides were stored and processed and that spraying may have occurred on Guam when he was stationed there.

The July 2008 rating decision denied the Veteran's claim of entitlement to service connection for bilateral hearing loss because there was no evidence of a nexus to service.  The private opinions (dated in February 2008, May 2010, and June 2010) regarding the relationship of the Veteran's current bilateral hearing loss are new as they were not previously of record.  These statements are also material as they provide competent opinions on the question of whether the Veteran's current bilateral hearing loss is related to his active military service.  Hence, this evidence specifically relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim.  Since the evidence is both new and material, reopening the claim of entitlement to service connection for bilateral hearing loss is warranted.

The July 2008 rating decision denied the Veteran's claim of entitlement to service connection for Type II DM because there was no evidence of exposure to herbicides such as Agent Orange in service.  The newspaper articles submitted by the appellant are new as they were not previously of record.  These newspaper articles are also material as they provide possible documentation of the claimed presence of dioxin at Andersen Air Force Base during the time the appellant was stationed there.  Hence, this evidence specifically relates to an unestablished fact necessary to substantiate the claim for service connection for Type II DM and raises a reasonable possibility of substantiating the claim.  Since the evidence is both new and material, reopening the claim of entitlement to service connection for Type II DM is warranted.

B.  Bilateral Hearing Loss Service Connection Claim

The appellant alleges that his current bilateral hearing loss is due to exposure to loud noise from working with communication headsets in service and while assigned to fly on military weather observation aircraft.  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).  Service incurrence or aggravation of organic disease of the nervous system (to include sensorineural hearing loss) may be presumed if such is manifested to a compensable degree within a year of a veteran's discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.  

When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Id. at 157.  38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected.  Id. at 159.  

Regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service.  If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes.  Id. 

The appellant underwent audiometric testing in December 1954.  (Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI)).  The puretone thresholds from that testing, in decibels and converted to ISO (ANSI) units, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
10
N/A
-5
LEFT
25
20
10
N/A
0

The appellant underwent service separation audiometric testing in October 1966, and the puretone thresholds from that testing, in decibels and converted to ISO (ANSI) units, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
10
5
5
10
LEFT
30
15
5
5
20

The appellant underwent private audiometric testing in February 2008; he reported having a longstanding history of noticeable hearing loss that had worsened over the prior ten years.  He also mentioned his exposure to excessive and prolonged aircraft noise during his military service.  The puretone threshold results, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
10
30
40
LEFT
15
10
10
20
45

Each ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.  The examiner opined that the appellant's hearing loss was likely due to his noise exposure during his military service.  

In May 2010, the appellant underwent another evaluation by this same examiner who again opined that the appellant's current bilateral high frequency hearing loss was likely due to his in-service noise exposure as his post-service noise exposure was unremarkable and there was no report of disease, injury or family history that could account for the hearing loss.

The evidence of record includes a written statement from the appellant's private treating physician, dated in June 2010.  The doctor stated that the appellant had complained of having problems with poor hearing which the physician attributed to the appellant's military service.  

The appellant underwent VA audiometric testing in May 2011; the examiner stated that the appellant had been exposed to extensive acoustic trauma in service.  The puretone threshold results, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
30
55
55
LEFT
30
25
25
45
65

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear.  Each ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.  

The VA examining audiologist discussed the audiogram results for the appellant's December 1954 entrance examination and for his October 1966 separation examination and stated that no significant threshold shift had been demonstrated by a comparison of those two examinations.    The examiner concluded that the etiology of the appellant's bilateral hearing loss was not the result of acoustic trauma in service because his service separation examination had showed normal hearing.  The examiner attributed the appellant's hearing loss to the aging process.  However, the examiner apparently did not convert the December 1954 ASA results or the October 1966 ASA results to ISO (ANSI) units.

The evidence unfavorable to the claim for service connection in this case consists of the service separation examination report which contained normal audiometric test results; the many years between service and clinical documentation of hearing loss; and the May 2011 negative VA audiology opinion.

As to the negative May 2011 audiology opinion, once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  "Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing."  Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  In Barr, 21 Vet. App. at 311, the Court found that a medical examination was inadequate because the examiner did not provide an etiological opinion and did not review prior medical records.  The May 2011 VA audiological examiner did not convert the December 1954 ASA results or the October 1966 ASA to ISO (ANSI) units and therefore her opinion was based on incomplete medical records.  When the results are converted, a decrease of 15 decibels in the right ear and a decrease of 20 decibels in the left ear are noted at 4000 Hz.  In addition, at 6000 Hz, a decrease of 30 decibels in the right ear and 15 decibels in the left ear was demonstrated.  Thus, the Veteran's service medical records clearly reflect an objectively measurable and measured worsening of hearing during service and the May 2011 audiology opinion to the contrary is of limited probative value.  See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of a veteran's claims folder).

Viewing the evidence in the light most favorable to the Veteran, the positive evidence of record consists of the fact that he currently suffers from bilateral sensorineural hearing loss, he had documented exposure to acoustic trauma in service, and that, when the results of the audiograms from the service entrance and exit examinations are converted to ISO (ANSI) units, a threshold shift is apparent.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss).  In addition, the Veteran is competent to assert the occurrence of in-service injury.  See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  Furthermore, there are two private medical opinions that attribute the appellant's current hearing loss to noise exposure in service.

Although there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the Veteran's assertions of in-service noise exposure and chronicity of symptoms as credible.  In addition, there is in-service evidence of some hearing loss.  Therefore, the Board concludes that evidence for and against the Veteran's claim for service connection for bilateral hearing is at least in approximate balance.  The Board will resolve any doubt in the Veteran's favor and find that service connection is warranted for bilateral hearing loss.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

C.  Prostate Disorder Service Connection Claim

A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993).  The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence.  Determinations relative to service connection will be based on review of the entire evidence of record.  38 C.F.R. § 3.303(a).  There must be medical evidence of a nexus relating an in-service event, disease, or injury, and a current disability.  Caluza v. Brown, 7 Vet. App. 498 (1995), Grottveit v. Brown, 5 Vet. App. 91 (1993).

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service.  38 U.S.C.A. §§ 110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury.  Further, a present disability must exist at some point during the claim process, and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a); see McClain v. Nicholson, 21 Vet. App. 319 (2007).

For the showing of 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."  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  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). 

Certain chronic disabilities may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

A veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Pain is the sort of condition that is observable by a lay person.  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

The appellant underwent a service entrance examination in December 1954.  No prostate disorder was noted on physical examination.  Review of his service medical treatment records does not reveal any complaints of, diagnosis of, or treatment for, any prostate disorder, including benign prostatic hypertrophy (BPH).  The appellant underwent a service separation examination in October 1966; again, no prostate disorder was found on physical examination.

In his VA Form 21-256, submitted in June 2009, the appellant reported that he had been exposed to defoliants designated for use in Vietnam, including Agent Orange, when he was stationed at Andersen Air Force Base in Guam between 1958 and 1965.  He indicated that he was seeking service connection for a "prostate condition".  

Review of the appellant's post-service private treatment records, dated between December 2006 and February 2009, reveals that his treating physician rendered a diagnosis of BPH in March 2007.

If a veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases will be established even though there is no record of such disease during service, provided that the disease is are manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e).  The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.  

The diseases for which service connection may be presumed to be due to an association with herbicide agents includes various cancers and, in particular, prostate cancer; however, the appellant has not been diagnosed with prostate cancer.  No other prostate condition is included in the list of presumptive diseases.  

Although the appellant stated, in a written statement he submitted in August 2010, that he had never requested a claim based on radiation, he has stated that he was exposed to ionizing radiation at Eniwetok and from flying in hydrogen bomb clouds; however, BPH is not a radiogenic disease.  38 C.F.R. § 3.311(b)(2).  

Even assuming that the appellant was exposed to tactical herbicides on Guam, BPH is not one of the diseases noted under 38 C.F.R. § 3.309 as a disease having a positive association with herbicide exposure.  Review of the appellant's service medical treatment records includes no mention of any diagnosis of any prostate problem and no mention of any treatment for any prostate pathology during his active service.  No prostate pathology was noted at the time of the appellant's service separation examination in October 1966.  Further, the record does not contain medical evidence linking the appellant's BPH to herbicide exposure or to ionizing radiation exposure.  

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  
Showing that a claimed disorder was incurred or aggravated during service includes the burden of tracing causation to a condition or event during service.  Combee, supra.  In order to prevail on direct service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).

A veteran may still be entitled to a grant of service connection on a direct basis if it can be shown that a condition had its onset during his military service, or became manifest to a compensable degree within one year of his separation from such service.  See Combee, supra.  As to the appellant's claim for a prostate disorder, there is no medical evidence of record to establish that he complained of, or was treated for, any such problem(s) while he was on active duty.  There is no evidence of record that the appellant experienced any prostate disorder to a compensable degree within one year of his separation from service in February 1967.  The claimed BPH is not documented in the clinical evidence of record until approximately March 2007, 40 years after the appellant's discharge from service in February 1967.  

There is no evidence of record that the appellant was clinically noted to have any prostate condition until many years after service; the diagnosis of BPH was first documented in 2007.  Furthermore, there is no competent medical opinion that etiologically links the BPH or any current symptoms associated with BPH to any aspect of the appellant's active military duty.  Nothing in the current record attributes the appellant's BPH to any incident of service, including his claimed exposure to ionizing radiation or his claimed herbicide exposure.

Chronicity is not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology is written information from the claimant and when "no" medical evidence indicated continuous symptomatology.  McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001) (per curiam).  Furthermore, there is no medical evidence of record in this case to establish a nexus between any in-service incident and any claimed prostate-related symptom.

The evidence does not support a finding of BPH or any related claimed prostate disorder to a compensable degree within the first post-service year, and no medical nexus evidence supports a finding of service connection for any such pathology on a presumptive basis.  In addition, no probative medical nexus evidence supports a finding of direct service connection for any such pathology.  

The preponderance of the evidence is against the appellant's claim for service connection for a prostate disorder; there is no doubt to be resolved; and service connection for a prostate disorder, claimed as due to herbicide exposure, is not warranted.   

ORDER


New and material evidence has been presented and the claim for service connection for bilateral hearing loss is reopened.

Service connection for bilateral hearing loss is granted.

Service connection for a prostate disorder, claimed as due to herbicide exposure, is denied.


REMAND

Additional development is necessary with respect to the issue of entitlement to service connection for Type II DM.  The appellant's claims for service connection for diabetic retinopathy and diabetic peripheral neuropathy of the upper extremities are secondary service connection claims, in that he argues that the retinopathy and the upper extremity peripheral neuropathy are causally or etiologically due to his DM.  Thus, the issue of whether the claim for service connection for diabetic retinopathy should be reopened and the issue of whether service connection for diabetic peripheral neuropathy of the upper extremities is warranted are inextricably intertwined with the DM claim.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  Accordingly, further appellate consideration must be deferred and this case is REMANDED for action as described below.

The Veteran contends that he currently has Type II DM that is related to in-service herbicide exposure.  The appellant does not contend, and his service records do not establish, that he had the required service in Vietnam to trigger a presumption that he was exposed to an herbicide agent.  See 38 C.F.R. § 3.307(a)(6)(iii)  (2010).  . 

Rather, he contends that he was exposed to Agent Orange while serving in Guam during the Vietnam era.  Service records indicate that he was stationed at Andersen Air Force Base at various times between 1958 and 1965.  The appellant has reported that the weather aircraft on which he flew was situated near a storage facility which housed Agent Orange that was used in Vietnam and possibly in Guam.  

VA's Compensation & Pension Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them in locations other than Vietnam or Korea.  See VA's Adjudication Procedures Manual, M21-1MR, Part IV.ii.2.C.10.0.  The manual sets forth specific steps to verify exposure to herbicides when a veteran with service outside of Vietnam or Korea claims a disability based on herbicide exposure.  Review of the claims file does not indicate that the referenced development has been accomplished.  

In addition, not all of the appellant's service personnel records have been included in the evidence of record.  As a result, the dates of the appellant's service in Guam and the nature of his duties there remain unclear.

Therefore, to ensure full compliance with due process requirements, this case is REMANDED for the following:

1.  Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A and the implementing regulations found at 38 C.F.R. § 3.159 is completed.

2.  Contact the National Personnel Records Center (NPRC) or other appropriate repository of records and request all service personnel records, including narrative performance reports, corresponding to the appellant's period of active duty from January 1955 to February 1966.

3.  Take appropriate steps to verify the appellant's reports of exposure to Agent Orange in Guam in accordance M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o).  All development actions must be documented in the claims folder. 

4.  To the extent there is an unsuccessful attempt to obtain any of these records, the claims file must contain documentation of attempts made.  The appellant and his representative must also be informed of the negative results and be given the opportunity to secure the records.

5.  After completing any additional development action deemed warranted by the record, re-adjudicate the appellant's claims.   If any of the claims are denied, issue a statement of the case that reflects consideration of all relevant evidence of record with application of all appropriate legal theories, to include direct, secondary, and aggravation theories for service connection.  Allow an appropriate period of time for response.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. 2011).




______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs