Citation Nr: 1314882 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-29 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a broken or locked jaw. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for ear pain or earaches. 6. Entitlement to service connection for an eye disorder. 7. Entitlement to service connection for a skin disorder, due to herbicide exposure. 8. Entitlement to service connection for hypertension, due to herbicide exposure. 9. Entitlement to service connection for joint pain, due to herbicide exposure. REPRESENTATION Appellant represented by: Roger Hale, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran's service included active duty for training from October 1976 to April 1977, and service in the Reserves from April 1977 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In August 2011, the Board remanded this case for further development. The case has returned to the Board for appellate review. In November 2011, the Veteran testified at a travel board hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In November 2011, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. The issues of (1) entitlement to service connection for a broken or locked jaw, (2) entitlement to service connection for ear pain or earaches, (3) entitlement to service connection for a skin disorder, (4) entitlement to service connection for hypertension, and (5) entitlement to service connection for joint pain are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The most probative evidence fails to link the Veteran's current acquired psychiatric disorder, to include PTSD, to his service. 2. The most probative evidence fails to link the Veteran's current bilateral hearing loss to his service. 3. The most probative evidence fails to link the Veteran's current tinnitus to his service. 4. The most probative evidence fails to link the Veteran's claimed eye disorder to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. The criteria for service connection for an eye disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements were satisfied by a May 2008 letter which advised the Veteran of the criteria for establishing service connection. The May 2008 letter was sent prior to the initial adjudication of the Veteran's claim in June 2009. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment and personnel records and records of his post-service private treatment. With respect to the issue of entitlement to service connection for an eye disorder, the Veteran's attorney requested at the November 2011 travel board hearing that VA obtain additional service treatment records dated in 1978 from Fort Davis, Panama, which purportedly will show treatment for an eye injury in service. See transcript, pp. 6-7. However, as discussed below, the Veteran has not reported any diagnosis, symptoms, or treatment of any eye condition during the pendency of his claim-i.e., since April 2008. Because the purported 1978 records could not satisfy the requirement of a current disability during the pendency of the claim, VA need not obtain those records. No VA examination was provided for the Veteran's acquired psychiatric disorder, claimed as PTSD, because the information and evidence of record does not indicate that the claimed disability or symptoms may be associated with any event, injury, or disease in service, or with another service-connected disability. No VA examination was provided for the Veteran's eye disorder because the information and evidence of record does not indicate that the claimed disability or symptoms may be associated with any event, injury, or disease in service, or with another service-connected disability. The Veteran was afforded VA compensation and pension examinations germane to his claims for service connection for hearing loss and tinnitus on appeal. The November 2008 examination was inadequate because it is based on an incorrect fact-namely, that the Veteran was exposed to acoustic trauma in combat. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (the Board must reject medical opinions that are based on incorrect facts). In fact, as the service treatment records and service personnel records show, and as the Veteran informed the March 2009 VA examiner, he did not have combat experience. The March 2009 VA examination report was adequate because the examiner based his opinion upon consideration of the Veteran's prior medical history, described the disabilities in sufficient detail so that the Board's evaluations of the claimed disabilities will be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against contrary opinions. Additionally, the March 2009 VA examiner fully described the functional effects caused by the Veteran's claimed bilateral hearing loss and tinnitus. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The record reflects substantial compliance with the Board's prior remand instructions. In August 2011, the Board requested that the agency of original jurisdiction (AOJ) scheduled the Veteran for a travel board hearing. In response, VA provided the Veteran with that hearing in November 2011. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the criteria for service connection. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his attorney has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The term "service," as used in 38 C.F.R. § 3.303, includes active duty and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty. See 38 C.F.R. §§ 3.6(a), (c), (d). Service Connection for an Acquired Psychiatric Disorder To establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Board notes that the Veteran has not asserted, and the evidence does not show, a diagnosis of PTSD during service, combat with the enemy, fear of hostile military or terrorist activity, prisoner of war status, or in-service personal assault. Id. The Board considers the Veteran's claim for service connection for PTSD as encompassing a claim for service connection for all psychiatric disorders diagnosed during the pendency of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran asserted in his April 2008 claim that his PTSD began on October 29, 1976-the date on which he entered service. In June 2008, the Veteran asserted that people who have died or become sick have been very traumatic for him. He stated that he dreams of killing someone by cutting his heart with a knife. The Veteran also stated that when he feels the reoccurrence of a traumatic event he has hit others and knocked them out. He also reported experiencing hyper-alertness, a terrible time concentrating, and a startle response. In his September 2008 Statement in Support of Claim for Service Connection for PTSD, the Veteran listed the names of four friends, each of whom he asserted had been injured outside of battle, and three of whom he asserted had been wounded in action. The Veteran stated that one man had developed lung cancer due to Agent Orange, another had developed prostate cancer due to Agent Orange, a third had been shot in the leg and exposed to Agent Orange, and a fourth had started sweating and shaking and had been diagnosed with cancer after serving in the Gulf War. The Veteran further described his friends' illnesses in a December 2008 letter. In a June 2009 letter, the Veteran elaborated: The servicemen that I have listed have died or are about to die from Agent Orange chemicals. This is not about participating in combat, but about the handling of Agent Orange and watching your friend dying from it. The anticipation of death is worse tha[n] death itself. PTSD...is an anxiety disorder that can occur after you have been through a traumatic event. A traumatic event is something horrible and scary that you see or that happens to you. During this type of event, you think that your life or others' lives are in danger. You may fe[e]l afraid or feel that you have no control over what is happening. The Veteran's service treatment records contain no complaints, diagnosis, or treatment of PTSD. In Reports of Medical Examination dated July 1976, March 1977, December 1982, December 1983, January 1985, April 1988, December 1989, December 1993, and September 1997, clinicians found that the Veteran's psychiatric system was normal. Similarly, in Reports of Medical History dated July 1976, September 1980, December 1982, December 1983, January 1985, April 1987, April 1988, December 1989, December 1993, and September 1997, the Veteran checked boxes indicating that he did not have, and had never had, depression or excessive worry or nervous trouble of any sort. The December 1993 Report of Medical History includes a diagnosis of attention deficit disorder (ADD) for which the Veteran had previously been placed on medication, with good effect. The September 1997 Report of Medical History also includes a diagnosis of ADD and a finding that the Veteran remains on medication. During the pendency of the claim (i.e., as of April 17, 2008), the Veteran has a diagnosis of attention-deficit hyperactivity disorder (ADHD) dated April 24, 2008 from INTEGRIS Family Care Northwest, and a diagnosis of PTSD dated July 2008 from Dr. J. Magnusson. The Board finds that the Veteran's PTSD was not incurred in service. Although the Veteran asserted in his April 2008 claim that his PTSD began on the date on which he entered service, the Veteran's own contemporaneous statements in his Reports of Medical History, as well as the in-service clinicians' statements in their Reports of Medical Examination all contradict that assertion. The Board finds that the in-service evidence warrants greater probative weight than the Veteran's April 2008 statement to the contrary, especially in the absence of any description of a stressor which occurred on the date of entry into service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994)(contemporaneous evidence has greater probative value than subsequently reported history); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Likewise, the Board is not persuaded that the Veteran's watching his friends suffer their illnesses, however traumatic, is related to the Veteran's own service, particularly because those events appear to be happening during the pendency of the claim-i.e., many years after the Veteran's separation from service. Moreover, to the extent that the Veteran now asserts that he incurred PTSD as a result of the stress of watching his friends' illness during his own service, the Board finds that this assertion is outweighed by the contemporaneous evidence in the Veteran's Reports of Medical History and Reports of Medical Examination showing that the Veteran experienced no such symptoms, and was consistently found to be psychiatrically normal, during service. Curry, 7 Vet. App. at 68 (1994). The Board further finds that the Veteran's ADD/ADHD was not incurred in service. ADHD was not specifically diagnosed during the Veteran's service, and his ADD was found in his December 1993 Report of Medical History, and again in his September 1997 Report of Medical History. Assuming arguendo that the Veteran's December 1993 Report of Medical History was issued during a period of active duty for training (ACDUTRA)-because the Veteran would be ineligible for service connection for that disease had it first been diagnosed during inactive duty for training (INACDUTRA)-the Board finds that service connection is not warranted because the disease clearly had its onset prior to the December 1993 Report, as evidenced by the fact that the Veteran had previously been prescribed medication (Imipramine) for ADD outside of service. Moreover, there is no evidence that the Veteran's ADD was aggravated in service because no findings of worsening or increased symptoms of ADD were made, and all Reports of Medical Examination found the Veteran to be psychiatrically normal on clinical examination. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); see also Hensley v. Brown, 5 Vet. App. 155, 163 (1993). The most probative evidence of record shows that the Veteran's acquired psychiatric disorder, to include PTSD and ADD/ADHD, was neither incurred in nor aggravated by service. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issue is denied. Service Connection for Hearing Loss and Tinnitus Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. However, this presumption is inapplicable in this case because the most probative evidence of record does not show that the Veteran manifested high frequency sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of service. Moreover, the Veteran's service is limited to ACDUTRA and INACTDUTRA and, as such, the presumption is inapplicable. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. The Veteran reported in his April 2008 claim that his hearing loss and tinnitus began on January 29, 1977. In a June 2008 letter, the Veteran reported that he served as a heavy equipment operator, and "[t]he equipment had a deep base noise. When I am talking with a man with a deep voice I have to read his lips because I can't hear him. High intense noises can hurt my ears." At his November 2011 travel board hearing, the Veteran testified that he sustained acoustic trauma from training with firearms and operating bulldozers, graders, trucks, forklifts, and 37K generators in service. See transcript, pp. 10-11, 13. He stated that he first experienced hearing loss and tinnitus in the 1980s. Id., p. 14. He stated that when he asked for medical help, he was told that he would be put out of the service if he did not pass his physical examination. Id., p. 15. The Veteran reported experiencing ongoing problems with hearing and tinnitus since leaving service. Id., p. 18. The Veteran's service treatment records include no complaints, diagnosis, or treatment of hearing loss or tinnitus. In Reports of Medical History dated July 1976, September 1980, December 1982, December 1983, January 1985, April 1987, April 1988, December 1989, December 1993, and September 1997, the Veteran checked boxes indicating that he did not have, and had never had, hearing loss. Reports of Medical Examination showed the following audiometric test results: July 1976 HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 - 5 LEFT 15 10 5 - 15 Mar. 1977 HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 20 10 LEFT 20 10 5 10 20 Dec. 1993 HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 25 25 LEFT 10 0 5 30 15 Sep. 1997 HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 15 20 LEFT -5 0 0 15 15 After service, in July 2008, Dr. Magnusson diagnosed the Veteran with hearing loss and tinnitus, but did not provide audiogram test results or an etiological opinion. VA provided the Veteran with an audio examination in November 2008. The examiner found that he had the following audiometric test results: Nov. 2008 HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 40 50 LEFT 20 20 30 45 45 As discussed in the VCAA section above, although the November 2008 examiner provided a positive opinion linking the Veteran's hearing loss and tinnitus to service, the Board finds this opinion must be rejected because it relies on a factually inaccurate premise-namely, that the Veteran was exposed to acoustic trauma in combat. Swann, 5 Vet. App. at 233 (1993). Additionally, the examiner did not distinguish between trauma incurred during ACDUTRA and INACDUTRA. VA provided the Veteran with another audio examination in March 2009. The examiner found that he had the following audiometric test results: Mar. 2009 HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 25 35 LEFT 20 15 20 30 35 The March 2009 VA examiner reviewed the Veteran's claims file and expressly considered the Veteran's statement that his primary source of noise exposure was to heavy equipment in service. The March 2009 VA examiner opined that: All audiograms available in the veteran's C-File, including one from the reserves dated only one year prior to retirement, noted normal hearing sensitivity for C&P purposes. In addition, there is no documentation in the veteran's medical record of tinnitus or complaints of hearing loss. Therefore, it is less likely than not that the veteran's hearing loss and tinnitus is the result of service in the military or reserves. The Board finds that the March 2009 VA examiner's opinion is competent based on the audiologist's medical expertise, and it is credible based on his duty to provide truthful opinions. It is likewise highly probative based on his medical reasoning, internal consistency, and consistency with the evidence of record. The Veteran is competent to report that he was exposed to loud noises from training with firearms and operating bulldozers, graders, trucks, forklifts, and 37K generators in service, and that he has had difficulty hearing and ringing in his ears since that time. Layno v. Brown, 6 Vet.App. 465, 469-71 (1994). However, the Board finds that the Veteran's assertions that he has had ongoing hearing difficulty and ringing in his ears since are not credible because they are contradicted by the more probative contemporaneous evidence in his Reports of Medical History dated September 1980, December 1982, December 1983, January 1985, April 1987, April 1988, December 1989, December 1993, and September 1997 in which he checked boxes indicating that he did not have, and had never had, hearing loss. Curry, 7 Vet. App. at 68 (1994). Moreover, the Board is not persuaded by the Veteran's assertion that he decided to forego medical help for hearing loss and tinnitus because he feared being put out of the service for two reasons: first, the Veteran sought and received treatment for numerous other ailments during service, and second, the objective contemporaneous Reports of Medical Examination dated December 1993 and September 1997 show no legally cognizable hearing loss. Moreover, the Board finds that the most probative evidence of record shows that there is no nexus between the Veteran's current bilateral hearing loss and tinnitus, and his service. The Board finds that the March 2009 VA examiner's negative nexus opinion as to bilateral hearing loss and tinnitus is entitled to greater probative weight than the Veteran's lay assertions of a nexus because the VA examiner has greater audiological expertise and relied on contemporaneous testing and a new examination. The Board has also considered the June 2009 and November 2011 private audiological examinations of record, and finds that because the former contains no rationale and the latter is based on an incorrect fact, they are entitled to less probative value than the March 2009 VA examiner's opinion. Specifically, the June 2009 private audiologist, Dr. B. Ward, opined that, "[a]fter reviewing the veteran's service history, it is just as likely as not that at least some of the veteran[']s hearing loss and tinnitus are the result of his exposure to hazardous noise while in the service." Dr. Ward provided no rationale for her opinion. Additionally, she neither acknowledged nor accounted for the Veteran's contemporaneous Reports of Medical History in which he denied ever having experienced hearing loss, or his Reports of Medical Examination in which clinicians consistently found no legally cognizable hearing loss. Similarly, the November 2011 private nurse's opinion that the Veteran's hearing loss and tinnitus are related to service is rejected for the same reason as the November 2008 QTC opinion-because it relies on the factually inaccurate premise that the Veteran was exposed to acoustic trauma in combat. Swann, 5 Vet. App. at 233 (1993). Given the absence of any credible reports reflecting that the Veteran has experienced hearing loss and tinnitus continuously since his exposure to noise in service, the Board finds that there is no factual basis upon which to conclude any current chronic hearing loss or tinnitus is linked to service. While service connection is possible for hearing loss and tinnitus which first met VA's definition of disability after service, it is not warranted in this case because the most probative evidence of record shows that the Veteran's current hearing loss and tinnitus are less likely than not related to service. Hensley, supra, at 159. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of these issues is denied. Service Connection for an Eye Disorder In a September 2008 letter, the Veteran contends that: One day I was working on a roof of a ste[e]l building with one of my shipmates, he was cutting ste[e]l. The steel was rusty so this caused the steel to pop and a piece of steel went into my eye. I was taken to Davis to see a doctor. The doctor couldn't remove the steel, [but] about three days after the incident the steel worked it[s] way out of my eye. In a December 2008 letter, the Veteran stated: "My eye injury was in Panama. We were cutting steel with a torch. The torch and steel popped and a piece of steel got into my eye. They couldn't get it out for three days....[This] happened in 1978." At his November 2011 travel board hearing at pp. 7-8, the Veteran testified that: I was cutting some steel with a torch and it popped and the steel went in the pupil of the eye and I couldn't get it out. So they took me to Davis and they put a magnet on it and whatever, and they couldn't get it out. Then they said, hey, we're gonna keep you here. It might take a month. While I was waiting to go back to Sherman, because they just put a patch on my eye, I squeezed my eyeball and the metal came out. So they drove me back out and said we're still gonna have to watch it because we don't know how much damage it's done to your eye. During the hearing, the Veteran's attorney requested that VA obtain documents from Fort Davis, Panama, regarding the Veteran's reported treatment there. Id., pp. 6-7. The Veteran's service treatment records show no evidence of complaints, diagnosis, or treatment of any eye injury. In Reports of Medical History dated July 1976, September 1980, January 1985, April 1987, April 1988, December 1993, and September 1997, the Veteran checked boxes indicating that he did not have, and had never had, eye trouble. In the December 1982 and December 1983 the Veteran did indicate eye trouble, but the clinicians identified this trouble as "wears glasses for reading," and did not find any eye injury. Another clinician listed that the Veteran wears glasses for reading in his January 1985 Report of Medical History. Significantly, in an August 1993 service treatment record, the Veteran indicated that he had never had an eye disease or an eye injury. In Reports of Medical Examination dated July 1976, March 1977, December 1982, December 1983, January 1985, April 1988, December 1989, December 1993, and September 1997, clinicians found that the Veteran's eyes and ophthalmoscopic systems were normal. The Veteran has not reported any diagnosis, symptoms, or treatment of any eye condition during the pendency of his claim. Additionally, although the Veteran reported that he had a piece of steel in his eye in service for approximately three days in 1978, he denied any history of eye disease or injury in an August 1993 service treatment record, and he testified at his November 2011 travel board hearing that the 1978 in-service treating clinician did not know of any resulting damage to his eye. In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). As discussed in the VCAA section above, VA need not attempt to obtain additional service treatment records dated in 1978 from Fort Davis, Panama, because those records could not satisfy the requirement of a current disability during the pendency of the claim, which was filed in April 2008. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issue is denied. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and ADD/ADHD, is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for an eye disorder is denied. REMAND The Board finds that the lay evidence provided by the Veteran and his attorney at the November 2011 travel board hearing, when combined with the existing evidence of record, warrants remand to further develop his remaining claims. First, the AOJ should contact any appropriate source to determine whether the Veteran or his unit was exposed to an herbicide agent and/or chemical weapons during his service in Fort Sherman, Panama in 1978; in Johnston Atoll in 1984-85; and in Gulfport, Mississippi in 1977 and 1981. The Board notes that even in the absence of presumptive service connection, service connection based on exposure to herbicides may be established on a direct basis if the fact of the exposure is established. Second, the Veteran should be given an opportunity to identify any healthcare provider who has treated him for his claimed disorders. Thereafter, any identified records that are not already included in the claims file should be obtained for consideration in the Veteran's appeal. Service Connection for Jaw and Ear Disorders A medical examination and opinion is required for the Veteran's claimed jaw and ear disorders. First, a private orthodontist, F. Hickman, DDS, MA, has provided a July 2008 finding of temporomandibular joint (TMJ) problems. Likewise, the Veteran is competent to report ear aches. Second, the Veteran has asserted that his TMJ and ear disorders are associated with a tooth drilling in service. In his April 2008 claim, the Veteran stated that his broken/locked jaw began on January 29, 1977, in Port Hueneme, California. In June 2008, the Veteran reported that: I was training in Port Hueneme, California [and] I went to the dental center to have my wisdom tooth removed. The dentist [said] that he would have to drill my tooth then break it apart to remove it. It also broke my jaw. I have the inability to fully open my mouth. My mouth will lock in an open position. I have severe jaw pain, pain behind my ear and or ear aches. Similarly, in a December 2008 letter, the Veteran reported that "[I]n Port Hueneme, California....When they pulled my wisdom tooth he broke my jaw, now my jaw locks up on me and my ear hurts[. T]his was in 1977." Additionally, at his November 2011 travel board hearing at page 23, the Veteran asserted that: On my right ear, that's where they cracked my jaw at [P]ort Hueneme, California, and ever since he did that-what he did was, he said look, I've got to drill it out and then we'll bust it up to get it out of there. It's gonna crack your jaw or break your jaw. I said that don't sound good, but okay. So, he drilled my tooth out and cracked my jaw getting it out. Ever since then, my jaw would lock and cause a pain in my right ear. The Veteran acknowledged that there is no indication of a broken or displaced jaw in his service treatment records. See transcript, p. 6. However, an undated service dental record shows that the Veteran had teeth 1 and 32-the upper and lower right wisdom teeth-extracted on February 3, 1977. Paradoxically, a February 1998 service dental record shows that he had teeth 1 and 32 extracted on April 7, 1993. In light of the Veteran's consistent testimony regarding the jaw damage sustained during the extraction of his right wisdom teeth, the corroborating service dental record showing the removal of his right wisdom teeth on February 3, 1977, and Dr. Hickman's July 2008 finding of TMJ problems, an examination is warranted to ascertain whether the Veteran's TMJ problems and ear aches are related to the in-service treatment the Veteran described. Service Connection for a Skin Disorder, Hypertension, and Joint Pain Additional development is required for the Veteran's claimed skin disorder, hypertension, and joint pain. First, in April 2008, a clinician at INTEGRIS Family Care Northwest diagnosed the Veteran with hypertension, polyarticular joint pain and gout. Likewise, in July 2008, Dr. Magnusson diagnosed the Veteran with hypertension, as well as chronic myalgia and joint pain which is greatest in his hands and feet. Another private physician, M. Yancy, D.O., diagnosed the Veteran with hypertension in November 2008. Additionally, the Veteran is competent to testify at his November 2011 travel board hearing that he has been diagnosed at the OU (presumably, Oklahoma University) Medical Center with skin cancer-basal cell carcinoma-of the hands, face, and head. See transcript, pp. 19-21, 24-25. Second, the Veteran's service treatment records include findings with respect to a skin disorder, hypertension, and joint pain. Regarding a skin disorder, in January 1977 the Veteran complained of an itchy rash on his face, neck, arms, chest, and legs, and the clinician found objective evidence of many miniscule bumps over the Veteran's whole body. Additionally, in January 1985, a clinician diagnosed the Veteran with life-long pseudofolliculitis barbae. Regarding hypertension, clinicians diagnosed the Veteran with hypertension on multiple occasions, including in Reports of Medical Examination dated September 1980, December 1993, and September 1997. Regarding joint pain, the Veteran reported having swollen joints in his July 1976 Report of Medical History at entrance into service. Third, the Veteran has asserted that his claimed skin disorder, hypertension, and joint pain are associated with exposure to the herbicide Agent Orange and/or chemical weapons in service. In a June 2008 letter, the Veteran reported that he has a skin condition in his right sideburn which manifests by cracking and bleeding, and has been present since he returned from his service in Panama in the 1980s. The Veteran also reported in a September 2008 letter that he was exposed to Agent Orange while moving old barrels full of it in the motor pool at Fort Sherman, Panama. He also reported having been exposed to both nerve and mustard agents and a chemical munitions stockpile while digging waterlines and places for concrete slabs on Johnston Atoll Island. In a December 2008 letter, the Veteran specified that his exposure in to Agent Orange and a resulting burn on his face occurred in 1978, and that his exposure to "Agent-Blister, nerve agent bombs and Agent Orange" at Johnston Atoll Island occurred in May 1985 when he was "digging in its ground with my hands" because "it takes decades for the chemicals to wash out of the ground." At his November 2011 travel board hearing, the Veteran's attorney asserted that the Veteran was exposed to Agent Orange while at Johnston Atoll and/or Gulfport, Mississippi, and requested that VA further develop the claim to establish exposure. See transcript, pp. 4-5, 8-9, 15, 25-26. The Veteran testified that he moved barrels of Agent Orange with a forklift at Gulfport, and noticed spills, bent barrels, and barrels with holes. Id., pp. 15-16. The Veteran testified that Agent Orange "soaked my right leg and then [got] on my clothes on the arms." Id., p. 16. He also testified that he moved four barrels of Agent Orange in Panama. Id., p. 17. The Veteran has also submitted numerous articles purporting to show that herbicides had been stored at Johnston Atoll Island until 1977, hypertension is linked to Agent Orange, Agent Orange was stored in Panama, and chemical munitions were tested and/or stored at Johnston Atoll Island from 1964 through at least October 2000. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his jaw disorder, earaches, skin disorder, hypertension, and joint pain. After securing any necessary authorization from him, obtain all identified treatment records which are not already of record, including from Oklahoma University Medical Center. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, that should be documented and the Veteran allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Regardless of the response, obtain records pertaining to any treatment the Veteran received for his jaw disorder, earaches, skin disorder, hypertension, and joint pain from all treating VA facilities since March 2009. 2. Contact any appropriate source(s) to determine whether the Veteran or his unit was exposed to an herbicide agent and/or chemical weapon(s) during his service in Fort Sherman, Panama in 1978; in Johnston Atoll in 1984-85; and in Gulfport, Mississippi in 1977 and 1981. In accomplishing this, it should be determined whether herbicides or other chemicals were stored/used at these locations at the times indicated, and whether the Veteran's unit or some of its elements were deployed there at those times. It appears that in 1977 and 1978, the Veteran was assigned to the 20th Naval Construction Regiment; and in 1981, 1984 and 1985, he was assigned to the Reserve Naval Mobile Construction Battalion 22. 3. After obtaining the records described above, the Veteran should be scheduled for a VA examination of his jaw disorder and earaches by an oral surgeon. All indicated tests and studies should be undertaken. The claims file should be made available for review of the Veteran's pertinent medical history. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's jaw disorder resulted from his military service, including the tooth extractions that apparently occurred therein. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's earaches resulted from his military service, including the tooth extractions that apparently occurred therein. In offering any opinion, the examiner should consider the full record, including the following pertinent documents: (1) an undated service dental record showing that the Veteran had teeth 1 and 32-the upper and lower right wisdom teeth-extracted on February 3, 1977; (2) the Veteran's consistent statements that he has been experiencing a jaw disorder and earaches ever since an in-service clinician at Port Hueneme, California, cracked his jaw while drilling and extracting his right wisdom teeth, numbers 1 and 32, in 1977; and (3) a July 2008 diagnosis of TMJ problems by F. Hickman, DDS, MA. The rationale for any opinion offered should be provided. If an examiner is unable to render an opinion without a resort to speculation, then the examiner must explain why this is so. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). 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. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs