Citation Nr: 1324749 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-05 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from February 1961 to November 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for diabetes mellitus, bilateral hearing loss, and tinnitus. The Veteran was scheduled to present testimony at the RO in Cleveland, Ohio before a Veterans Law Judge in June 2013. However, the Veteran failed to report to the hearing. As the record does not contain further explanation as to why the Veteran failed to report to the hearing, or a request to reschedule the hearing, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704(d). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not serve in Vietnam and there is no competent and credible evidence establishing that he was exposed to Agent Orange during service. 2. Diabetes mellitus, type II was not shown in service or for many years thereafter, and there is no probative evidence suggesting the disability is related to service. 3. The most probative evidence fails to link the Veteran's current bilateral hearing loss to service. 4. The most probative evidence demonstrates that the Veteran does not have tinnitus. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The requirements for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 3. The requirements for establishing service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence she is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a May 2008 letter issued prior to the July 2008 rating decision, the Veteran was provided notice regarding what information and evidence was needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The May 2008 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's available service treatment records, service personnel records, VA treatment records, a VA audiological examination report, and lay statements. A medical opinion as to the Veteran's diabetes mellitus is not warranted because the information and evidence of record does not establish that the Veteran suffered an event, injury or disease in service. Specifically, as discussed below, the evidence does not show that the Veteran was exposed to herbicides, such as Agent Orange, during his service, nor is there any evidence of diabetes during service or for many years thereafter. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed above, the Board has considered and complied with applicable VCAA provisions. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served on active duty 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 or diabetes mellitus, 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. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection for Diabetes Mellitus, Type II The Veteran claims entitlement to service connection for diabetes mellitus, type II based on exposure to Agent Orange during service. The Veteran does not contend that he served in Vietnam. Rather, he alleges his exposure occurred in the United States when cleaning aircraft that had been in Vietnam. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). A veteran is entitled to a presumption of service connection if he is diagnosed with type 2 diabetes mellitus, or other enumerated diseases, associated with exposure to certain herbicide agents, if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the servicemember's presence at some point on the landmass or the inland waters of Vietnam). Recently, 38 C.F.R. § 3.307 was amended to include service between April 1, 1968, and August 31,1971 in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period. 76 Fed. Reg. 4245-01 (Jan. 15, 2011). As the Veteran does not contend and the evidence does not establish that the Veteran served in Vietnam or in Korea, he is not presumed to have been exposed to herbicides and the presumptive provisions of 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e) are not for application. Moreover, the medical evidence of record suggests his diabetes was diagnosed in 1983, which is 18 years after his discharge from service. Thus, service connection for diabetes as a chronic disability under 38 C.F.R. § 3.309(a) is also not warranted. However, case law has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records include no complaints, diagnosis, or treatment of diabetes mellitus. A July 1965 Report of Medical Examination at separation showed that the Veteran's health was normal on clinical evaluation. Urinalysis was negative for albumin and sugar. Private treatment records suggest the Veteran's diabetes was diagnosed in 1983. There is no medical evidence of record suggesting that his diabetes is related to his military service. In May 2008, the Veteran stated that he had been exposed to Agent Orange during his service in the United States when he was cleaning out the airplanes returning from Vietnam. In his October 2008 notice of disagreement, the Veteran specified that he cleaned C-130 aircraft, including wash down time in which he removed dirt and dust. The Veteran asserted that he had extensive exposure to dioxins including Agent Orange as a result of cleaning and loading those aircraft. He stated that: On many occasions, people would talk on what was aboard the aircraft and what the possibilities may be[,] thinking it was diesel fuel or kerosene....It made good common s[e]nse when placed for refueling in Vietnam it rained and residual [herbicides] would remain on the Aircraft even coming back to the [United] States. In a November 2008 statement, the Veteran asserted that he was told to clean a yellow powder out of the tie down wells of C-130 airplanes. He stated that "we didn't know [what] it was and didn't know that it could hurt us. I late[r] found out it was Agen[t] Orange. The only person that could verify this is my NCO....[who] died of cancer [in 1969]. The Veteran is competent to report on things of which he has personal knowledge derived from his own senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also 38 C.F.R. § 3.159(a)(2). Thus, he is competent to report that he cleaned dirt, dust, and yellow powder off of C-130 aircraft. However, there is no evidence indicating the Veteran has expertise in identifying herbicide compounds or the composition of the dirt, dust, and yellow powder he alleges he cleaned from the airplanes. Moreover, there is no competent evidence supporting his contention that the C-130 planes he specifically cleaned were in Vietnam and/or were exposed to Agent Orange. The Veteran's argument assumes that every single C-130 plane in Vietnam was covered in Agent Orange. However, while VA has established a presumption of exposure for any veteran who set foot on the landmass in Vietnam, that presumption was established due to the inherent difficulty in establishing which veterans were actually exposed, not because everyone was exposed. In Haas v. Peake, 525 F.3d 1168, 1176 (Fed. Cir. 2008), the Federal Circuit, citing 50 Fed.Reg. at 34,454-55, noted that VA's longstanding policy of presuming dioxin exposure while serving in Vietnam was "based on the many uncertainties associated with herbicide spraying during that period which are further confounded by lack of precise data on troop movements at the time." The Federal Circuit also quoted "While it may be possible to approximate areas where herbicides were sprayed," the agency wrote, "it would be extremely difficult to determine with an acceptable degree of precision whether an individual veteran was exposed to dioxin." Id. Indeed, in trying to conduct the mandated Agent Orange Study, the Centers for Disease Control (CDC) explained that "the Agent Orange Exposure Study ... cannot be done.... The difficulty is and has always been the inability to discriminate between exposed and unexposed ground troops." Haas, 525 F.3d at 1177, citing Agent Orange Legislation and Oversight: Hearing on S. 1692, the Proposed "Agent Orange Disabilities Benefits Act of 1987"; S. 1787, the proposed "Veterans' Agent Orange Disabilities Act of 1987"; and Agent Orange Oversight Issues Before the S. Comm. on Veterans' Affairs, 100th Cong. 165-66 (1988) (statement of Thomas E. Harvey, Deputy Administrator of the VA). The CDC ultimately concluded that it had no validated scientific method of identifying a group of veterans who were highly exposed to Agent Orange. Id. With respect to the Veteran's November 2008 statement that he later "found out" that the substance which he cleaned off of C-130 aircraft was Agent Orange, the Veteran has not provided the source for that information. There is simply no evidence that the Veteran had specific scientific knowledge such that he could identify Agent Orange residue by smell, sight, etc., and he has not claimed that he could. His DD Form 214 notes he had a high school education, and other evidence of record indicates he has worked as an aircraft mechanic for 35 years after service. In the absence of any reported qualifications for identifying herbicides from dust, dirt, and powder, and given his own statements showing that his conclusions about herbicide exposure are based on speculation and conjecture, the Board finds that the Veteran is not competent to determine that he was exposed to herbicides from cleaning C-130 aircraft that had been in Vietnam, approximately 8000 miles away from where he served in the United States. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010).finds that this lacks credibility because the Veteran did not explain the source or basis for this information. Moreover, VA independently sought information regarding the Veteran's possible exposure to herbicides, and in June 2008 the National Personnel Records Center informed VA that there are no records of exposure to herbicides regarding this Veteran. After weighing the probative value of the foregoing, the Board finds that the Veteran's report that he was exposed to herbicides during his service in the United States is neither competent nor persuasive. In sum, there is no competent and credible evidence establishing that the Veteran was exposed to Agent Orange during service, there is no evidence of diabetes during service or for many years thereafter, and there is no competent evidence even suggesting a link between the Veteran's diabetes mellitus and his military service. Accordingly, service connection for diabetes mellitus, type 2, is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Service Connection for Bilateral Hearing Loss and Tinnitus The Veteran claims entitlement to service connection for bilateral hearing loss and tinnitus due to exposure to aircraft noise during service. 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. "[W]hen 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 zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Veteran's service treatment records include a Report of Medical Examination with audiometric results at separation from service, dated July 1965: July 1965 HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -10 -10 5 LEFT 5 -5 -10 0 0 However, service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. After conversion to ISO units: July 1965 HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 0 10 LEFT 20 5 0 10 5 No documentation of complaints, diagnosis, or treatment of hearing loss or tinnitus appears in the Veteran's service treatment records. After service, VA obtained an opinion from an examining audiologist in December 2009. The audiologist noted the Veteran's report that he worked as an aircraft mechanic both during and after service, did not serve in combat, and first started experiencing high frequency hearing loss in service. The audiologist also noted that the Veteran denied having tinnitus. An audiometer evaluation revealed pure tone thresholds, in decibels, were as follows: Dec. 2009 HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 35 70 70 LEFT 15 15 20 65 60 The Veteran's speech recognition scores were 88 percent in the right ear and 92 percent in the left ear. The VA examining audiologist diagnosed the Veteran with bilateral sensorineural hearing loss. She opined that: [The Veteran's] current hearing loss is not due to exposure to aircraft engine noise in the service, as he had normal hearing in both ears when he was discharged from the military. Once away from loud noises, our hearing does not get worse. The Board finds this opinion to be highly probative. The examiner explicitly considered the Veteran's claims file, discussed his medical history in her report, and interviewed the Veteran. Additionally, her etiological conclusion was unequivocal and conclusive, and her reasoning was clear. Consequently, the Board finds that the December 2009 VA examiner's opinion warrants great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no medical opinion to the contrary in the record. By contrast, the Board finds that the Veteran's own lay statements linking his bilateral hearing loss to service are not entitled to any probative weight because under the circumstances of this particular case he is not competent to opine on such complex medical questions. As discussed above, the Veteran told the December 2009 examiner that he first started experiencing high frequency hearing loss in service. The Veteran also asserted in his January 2010 substantive appeal that he should be granted service connection for hearing loss and tinnitus because his service included work on aircraft maintenance. While the Veteran is competent to report subjectively experiencing hearing loss, he is not competent to diagnose or determine the extent of hearing loss as such matters involve the interpretation of objective medical tests. Additionally, medical expertise is required to determine the etiology of hearing loss, as such condition can be due to many factors. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether the symptoms the Veteran claims to have experienced in service or following service are in any way related to his current hearing loss is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Consequently, the Veteran's opinion as to the onset of hearing loss disability and the etiology of his current hearing loss are not competent medical opinions. The Board finds the separation audiogram and the medical opinion by the VA examiner to be significantly more probative than the Veteran's lay assertions as to the onset and etiology of his hearing loss. With respect to the Veteran's claim for tinnitus, the Board finds that the Veteran's statement denying tinnitus to the December 2009 examiner is most probative. Moreover, VA treatment records dated in 2009 also reveal the Veteran denying tinnitus. The Veteran is competent to state whether he has tinnitus. Horowitz v. Brown, 5 Vet. App. 217, 222-223 (1993) (overturned on other grounds in Butts v. Brown, 5 Vet. App. 532, 538 (1993)). Although the Veteran has stated that he should be granted service connection for tinnitus because his service included work on aircraft maintenance, exposure to noise alone, without resulting symptoms or disability, does not warrant service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In sum, although the Veteran has been shown to have a current hearing loss disability for VA purposes, the Board finds that the most probative evidence fails to link his current bilateral hearing loss to service. Moreover, the most probative evidence indicates the Veteran does not suffer from tinnitus. Accordingly, service connection for bilateral hearing loss and tinnitus is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for diabetes mellitus, type II, is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs