Citation Nr: 1322586	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  10-37 022	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, including as a result of herbicide exposure.  

2.  Entitlement to service connection for hypertension, including as a result of herbicide exposure.  

3.  Entitlement to service connection for bilateral hearing loss.  

4.  Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1964 to June 1968.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In April 2011, a video conference hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.

The issues of service connection for hypertension, hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran had verified service in the Republic of Vietnam (RVN).  

2.  The Veteran has been diagnosed as having Type II diabetes mellitus for which he is taking medication.  


CONCLUSION OF LAW

Diabetes mellitus is presumed to have been incurred as a result of service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

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, 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter of service connection for diabetes mellitus; any notice defect or duty to assist failure is harmless.  

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as diabetes mellitus, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116.  Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. 

Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service.  If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma, ischemic heart disease, "all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)," and Parkinson's disease.  38 C.F.R. § 3.309(e) (2012). 

Aside from these presumptive provisions, service connection might be established by satisfactory proof of direct service connection. See Combee v. Brown, 34 F.3rd 1039 (Fed. Cir. 1994).

In accordance with VA regulations, the National Academy of Science (NAS) issued "Veterans and Agent Orange: Update 2008" (Update 2008).  The attached notice explains a determination made by the Secretary, based upon Update 2008 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for the following health outcomes:  Hypertension; Cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses); Cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; Esophageal cancer; Stomach cancer; Colorectal cancer (including small intestine and anus); Hepatobiliary cancers (liver, gallbladder and bile ducts); Pancreatic cancer; Bone and joint cancer; Melanoma; Non-melanoma skin cancer (basal cell and squamous cell); Breast cancer; Cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); Urinary bladder cancer; Renal cancer (kidney and renal pelvis); Cancers of brain and nervous system (including eye); Endocrine cancers (thyroid, thymus, and other endocrine organs); Leukemia (other than all chronic B-cell leukemias including chronic lymphocytic leukemia and hairy cell leukemia); Cancers at other and unspecified sites; Neurobehavioral disorders (cognitive and neuropsychiatric); Movement disorders (including amyotrophic lateral sclerosis, but excluding Parkinson's disease); Chronic peripheral nervous system disorders; Respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disorder, and farmer's lung); Gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, and ulcers); Immune system disorders (immune suppression, allergy, and autoimmunity); Circulatory disorders (other than ischemic heart disease); Endometriosis; Effects on thyroid homeostasis; and Certain reproductive effects, i.e., infertility, spontaneous abortion, neonatal or infant death and stillbirth in offspring of exposed people, low birth weight in offspring of exposed people, birth defects (other than spina bifida) in offspring of exposed people, childhood cancer (including acute myelogenous leukemia) in offspring of exposed people.  See Notice, 75 Fed. Reg. 247 81,332-35 (Dec. 27, 2010)  

In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1990).   The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

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) (West 2002); 38 C.F.R. § 3.102 (2011).  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record.  See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006).  Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection.  Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007).  As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself.  The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence.  Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006).  Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent.  Cartwright v. Derwinski, 2 Vet. App. 24 (1991).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F. 3d at 1377.  Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). 

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  

Diabetes Mellitus

The Veteran contends that service connection is warranted for diabetes mellitus.  He asserts that he was exposed to the defoliant, Agent Orange, while serving in the RVN and that he has had elevated blood sugar readings for several years.  It is noted that review of the Veteran's service treatment records (STRs) verifies RVN service.  

Review of the Veteran's STRs fails to disclose evidence of elevated glucose levels.  There is no lay or medical evidence showing elevated glucose in the years immediately following his discharge from active duty.  

VA treatment records show that in November 2008 laboratory studies showed increased blood glucose levels.  Records in 2009 and 2010 show that he has been diagnosed as having type II diabetes mellitus.  In January 2010, he was shown to be taking insulin for treatment of diabetes.  

The Veteran is shown to be taking insulin for type II diabetes mellitus.  He is presumed to have been exposed to defoliants while serving in the RVN.  In such cases, service connection for diabetes mellitus may be presumed and service connection is warranted.  


ORDER

Service connection for diabetes mellitus is granted.  


REMAND

The Veteran is also seeking service connection for hypertension, hearing loss, and tinnitus.  Regarding the claim of service connection for hypertension, it is noted that hypertension is persistently high arterial blood pressure with suggested threshold levels starting at 140 mm/Hg systolic and 90 mm/Hg diastolic.  Dorland's Illustrated Medical Dictionary, 799 (27th ed. 1988).  Note (1) to Diagnostic Code 7101 recognizes the disability of hypertension when the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension when the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104 (2012).  The Veteran's blood pressure reading was normal at the time of entry into active duty, but at separation from service, a blood pressure reading of 140/90 was recorded.  Current treatment records show that he is currently diagnosed with hypertension.  The Veteran has not been afforded a compensation examination to ascertain whether the blood pressure reading noted at separation from service marked the onset of the currently diagnosed hypertension.  Under these circumstances, the Board finds that the Veteran should be afforded a medical examination in order to determine whether the current hypertension is etiologically related to his active military service.  See 38 U.S.C.A. § 5301A (d)(2) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Regarding the claims of service connection for hearing loss and tinnitus, it is noted that the Veteran was afforded an examination in November 2008 wherein the examiner stated the matter of whether hearing loss and tinnitus were related to service could not be resolved without resorting to speculation.  The examiner did not; however, address the Veteran's assertion of continuity of symptomatology since service.  It is noted that the United States Court of Appeals for Veterans Claims (Court) held clearly held that, even though disabling hearing loss may not be demonstrated at separation, and a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service.  Hensley v. Brown, 5 Vet. App. 155 (1993).  

Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim.  See 38 C.F.R. § 3.159(c)(4)(i) (2012).  Taking into account the Veteran's statements in support of his claim, as well as VA treatment reports of record which note that the Veteran has a current diagnosis of hearing loss  and tinnitus, the Veteran's claims for service connection should be remanded for additional VA examinations so as to determine whether any currently-diagnosed hearing loss and tinnitus is etiologically-related to his period of active service.  

With regard to the VA audiological examination, the Board notes that the requested VA opinion must be consistent with the ruling in Hensley.  As such, the examiner must not rely solely on the fact that the Veteran's hearing was within "normal" limits for VA purposes at the time of separation from service when forming an opinion.  If the aforementioned is the basis, or crux, or the examiner's rationale, the opinion would be inadequate on which to base a decision.  


Accordingly, these issues are REMANDED for the following actions:

1.  The RO/AMC should arrange for the Veteran to undergo a medical examination to ascertain the current nature and etiology of his hypertension.  The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that current hypertension is related to service.  The examiner should be advised to comment on the blood pressure reading noted at the time of the Veteran's examination for separation from active duty.  The claims folder should be made available for review in connection with this examination.  The examiner should provide complete rationale for all conclusions reached.  

2.  The RO/AMC shall schedule a VA audiological examination so as to assess the nature and etiology of the Veteran's currently-diagnosed hearing loss and tinnitus.   The examiner must provide an opinion as to whether any identified hearing loss and tinnitus are at least as likely as not etiologically-related to military service.  The Veteran's claims folder must be made available to the examiner for review in conjunction with the examination.  Following a review of the claims folder, the examiner should address whether it is at least as likely as not (probability 50 percent or more) that hearing loss or tinnitus originated during active service, or are otherwise related to active service.    The examiner should provide a clear rationale and basis for all opinions expressed.  

The examiner should note in his or her opinion that a review of the claims file was conducted, and must discuss pertinent evidence within the claims file.  Consideration must be given to the Veteran's assertion of continuity of symptomatology.  Further, the examiner must not rely on the fact that the Veteran's hearing was within "normal" limits for VA purposes, or non-ratable as per 38 C.F.R. § 3.385, at the time of separation from service, as the basis for any opinion provided.  Doing so would render the opinion inadequate.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.  

3.  Thereafter, the RO/AMC should readjudicate the issues on appeal.  If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered.  The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim.  See 38 C.F.R. § 3.655 (2012).  

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).



______________________________________________
F. Judge Flowers
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs