Citation Nr: 1605884 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 12-12 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicides. 2. Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had active service from September 1967 to October 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The Veteran's record before the VA consists of an electronic record located in Veterans Benefits Management System (VBMS)/Virtual VA. Additionally, the RO issued a rating decision in June 2014 denying service connection for ischemic heart disease. The VBMS file reflects that the Veteran filed a notice of disagreement (NOD) with the decision, and an October 2015 VA letter acknowledged the disagreement. As the RO has acknowledged receipt of the NOD, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VBMS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable in this case as to the claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran argues that he has current bilateral hearing loss disability that is due to in-service acoustic trauma. VA acknowledges that the Veteran was exposed to acoustic trauma in the course of his duties as an airplane ordinance mechanic onboard the U.S.S. Kitty Hawk (CVA-63) during naval service. See March 2011 rating decision wherein the RO granted service connection for tinnitus based on conceded noise exposure. However, the record remains unsettled as to whether he has current hearing loss disability by VA standards due to the acoustic trauma in service. See 38 C.F.R. § 3.385; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a January 2011 VA audiology examination, the examiner opined that the Veteran did not have hearing loss by VA standards in the right ear, and also that the left ear hearing loss, while meeting the criteria set forth at 38 C.F.R. § 3.385, was not as likely as not due to service. She explained that the left ear hearing loss was of mixed etiology which means that a conductive component existed to the hearing loss. The conductive component to the hearing loss was most likely due to the middle ear issues the Veteran was then suffering from which were reportedly related by the Veteran to a recent bout of sinusitis. The examiner felt that if the sensorineural component of the hearing loss was taken into consideration for the left ear, then the Veteran would have essentially normal hearing in that ear. She pointed out that the Veteran was unsure of the exact onset to his hearing difficulties and noted that he reported experiencing temporary threshold shifts during his military career after having been exposed to the loud sounds of jet engines. At his hearing before the undersigned, the Veteran testified that he experienced hearing loss related to routinely being in close proximity to aircraft while on the flight deck of the USS Kitty Hawk. He described his duties and his perception that his hearing loss began at the time of this exposure. On questioning, he further stated that he believed that his hearing loss due to that exposure was now more pronounced than it was during the 2011 VA examination. Owing to the fact that the Board finds the Veteran's testimony to be credible inasmuch as it is generally free from exaggeration on its face and consistent with the record, the Board will order a VA examination to determine whether the Veteran has present hearing loss disability due to his documented acoustic trauma in service. As to the claim of service connection for diabetes mellitus, the Veteran's principal argument is that the disability is due to Agent Orange exposure. To that end, he gave detailed testimony regarding multiple trips by helicopter to Da Nang, from the Kitty Hawk, to fix guns that would not work on planes there. He estimated that he spend eight hours there one time fixing a 30 millimeter gun on a plane. He also theorized that he was exposed to Agent Orange because of his work on the planes that routinely flew in Vietnam and via drinking water and eating fish from the waters around Vietnam. He has submitted multiple supporting government reports and opinions in this regard. See Veteran's testimony and supplemental materials submitted at the hearing. Despite his testimony, the Veteran's service personnel records do not explicitly document that he was in Vietnam during his service. While his medals and decorations do include the Republic of Vietnam Campaign Medal with Device for service aboard the Kitty Hawk, it is noted that his eligibility for the medal was based on six months of service outside the geographical limits of the Republic of Vietnam but contributing direct support to the Republic of Vietnam Armed Forces. The RO did not in fact attempt to specifically verify the Veteran's contentions via the U.S. Army and Joint Services Records Research Center (JSRRC) or Marine Corps of National Archives and Records Administration (NARA)because it found that information provided by the Veteran was insufficient to allow for a search. In a recent decision, the United States Court of Appeals for Veterans Claims (Court) held in Gagne v. McDonald, No. 14-0334, 2015 WL 6114516 (Vet. App. Oct. 19, 2015), that VA's duty to assist is not bound by the JSRRC's 60-day limitation for stressor verification requests. The Court found that VA was obligated under its duty to assist to submit multiple 60-day requests to the JSRRC for records of a stressor event. Id. at 7. The Court determined that the fact that multiple records searches would burden JSRRC employees does not mean that those efforts would be "futile." Id. However, the Court did not state that the duty to assist requires unlimited searches. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) ("The 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim"). In Gagne, the Veteran's relevant service period for his claimed in-service stressor covered a 13-month period from August 1967 to August 1968. Gagne v. McDonald, 2015 WL 6114516 at 7. The Court found that a records search over a 13-month period was not "unreasonably long, given the particulars of the stressor provided by the appellant." Id. In this case, the RO should attempt verification for the Veteran's relevant service period aboard the USS Kitty Hawk, as it is both a reasonable period of time and the Veteran has provided a sufficient account of his trips to Vietnam via helicopter from the Kitty Hawk. The Board finds that as VA did not comply with its duty to assist to obtain records in the possession of a Federal department or agency. Additionally, in April 2015, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision in Gray v. McDonald, 27 Vet. App. 313 (2015), which addresses VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii). The Court remanded that case for VA to reevaluate its definition of inland waterways. Because the Veteran here seeks service connection for diabetes mellitus, based on his presence in the official waters of the Republic of Vietnam, the Board finds a remand is necessary to allow the AOJ to readjudicate this matter in the first instance once guidance from the Veterans Benefits Administration (VBA) is issued regarding the classification of inland waterways. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a VA audiological examination. The examiner should review the VBMS/Virtual VA records, and indicate in the examination report that such was accomplished. The examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current hearing loss in either ear is causally and etiologically related to service. The examiner should take into consideration the entrance and separation examination results in the service treatment records as well as the 2011 VA examination results in addition to the Veteran's credible testimony as to acoustic trauma onboard ship and the audiological literature he has submitted in conjunction with his testimony. Also, the lack of a contemporaneous record of complaint in service of bilateral hearing loss, and having normal hearing at separation from service, alone, is not fatal to the claim. Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may provide a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 2. Conduct all development deemed appropriate to verify whether the Veteran flew from the USS Kitty Hawk to repair aircraft during his period onboard that ship. This development may include numerous inquiries to the JSRRC and or NARA to cover the time period deemed appropriate. 3. Thereafter, if the Veteran's direct presence in Vietnam cannot be established following inquiries to the JSRRC and or other appropriate repository, readjudicate the Veteran's claim for service connection for diabetes mellitus once VBA issues guidance regarding the classification of inland waterways per the Court's holding in Gray v. McDonald, 27 Vet. App. 313 (2015). 4. After completing the requested action, and any additional action deemed warranted, the AOJ should readjudicate the claims. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The issues should then be returned to the Board for further appellate consideration, if in order. 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). 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 2014). _________________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).