Citation Nr: 1614544 Decision Date: 04/11/16 Archive Date: 04/26/16 DOCKET NO. 14-15 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a heart disorder, to include hypertension, as due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity as secondary to diabetes mellitus, type II. 4. Entitlement to service connection for peripheral neuropathy of the left upper extremity as secondary to diabetes mellitus, type II. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity as secondary to diabetes mellitus, type II. 6. Entitlement to service connection for peripheral neuropathy of the left lower extremity as secondary to diabetes mellitus, type II. 7. Entitlement to service connection for tinnitus. 8. Entitlement to service connection for a right elbow disorder. 9. Entitlement to service connection for a left elbow disorder. 10. Entitlement to service connection for bilateral hearing loss. 11. Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from November 1962 to October 1966. This case comes before the Board of Veterans Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2016, the Veteran testified at a Travel Board hearing at the RO in Waco, Texas before the undersigned. Subsequently, the Veteran submitted additional evidence regarding a heart disorder with a waiver of initial Agency of Original Jurisdiction review. The claims of entitlement to service connection for a heart disorder and diabetes mellitus, type II, were previously considered and denied in an April 2004 VA rating decision. Service personnel records have since been obtained. These records were not associated with the claims file when VA first decided these issues in the April 2004 VA rating decision and is deemed relevant to the claims on appeal. Accordingly, these claims will be adjudicated on a de novo basis rather than on the basis of whether new and material evidence has been received. See 38 C.F.R. § 3.156(c) (2015). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims files. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for bilateral hearing loss and a right knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and there is no affirmative evidence to the contrary that the Veteran did not have herbicide exposure while stationed in Vietnam. 2. The Veteran's current diagnosis of coronary artery disease is manifested to a compensable degree of at least 10 percent after separation from service by the required continuous medication. 3. The Veteran's current diagnosis of diabetes mellitus, type II, is manifested to a compensable degree of at least 10 percent after separation from service by the required management of a restricted diet. 4. The Veteran's current diagnosis of peripheral neuropathy of the right upper extremity is causally related to the service-connected diabetes mellitus, type II. 4. The Veteran's current diagnosis of peripheral neuropathy of the left upper extremity is causally related to diabetes mellitus, type II. 5. The Veteran's current diagnosis of peripheral neuropathy of the right lower extremity is causally related to diabetes mellitus, type II. 6. The Veteran's current diagnosis of peripheral neuropathy of the left lower extremity is causally related to diabetes mellitus, type II. 7. The Veteran's tinnitus as likely as not began during service. 8. At the January 2016 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated he would like to withdraw the appeal of the issue of entitlement to service connection for right elbow disorder. 9. At the January 2016 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated he would like to withdraw the appeal of the issue of entitlement to service connection for left elbow disorder. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a heart disorder, to include hypertension, as due to herbicide exposure, have been met. 38 U.S.C.A. §§ 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.307(a)(6), 3.309(e), 4.104, Diagnostic Code 7007 (2015). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, have been met. 38 U.S.C.A. §§ 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.307(a)(6), 3.309(e), 4.119, Diagnostic Code 7913 (2015). 3. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2015). 4. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. 5. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. 6. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. 7. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309(a) (2015). 8. The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to service connection for a right elbow disorder have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 9. The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to service connection for a left elbow disorder have been met. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. Given the decision below, a detailed explanation of how VA complied with its duties to notify and assist is unnecessary. Service Connection for a Heart Disorder and Diabetes Mellitus, type II If a veteran was exposed to an herbicide agent during active military, naval, or air service in the Republic of Vietnam, a specified list of diseases, to include coronary artery disease and diabetes mellitus, type II, shall be service-connected if they manifest to a compensable degree of 10 percent or more at any time after service. See 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). See also M21-1, Part IV, Subpart ii, Chapter 1, Section H, para. 1 (February 5, 2016). Review of the Veteran's DD Form 214 reports his foreign and/or sea service for one year, two months, and 9 days, and the Veteran has presented credible evidence of his service in Vietnam. Specifically, he reported in a December 2011 statement that in 1963 he was informed by another Marine in his company that they were in Vietnam. He noted in the December 2012 notice of disagreement that he was in Vietnam, carried ammunition to the Ammo Dump, and that the one person who could have verified his service in Vietnam is now deceased. He further noted that he served in the H&S Co 3rd Bn 9th MarDiv (Rein) FMF in October 1963 and then in Co "C" 3rd ATBN 3rd MarDiv (Rein) FMF from November 1963 to January 1964. These contentions were reiterated by the Veteran in April 2014 and June 2014 VA Form 9, and his service in the specified units are corroborated by his service personnel records. As a result, the Board finds that the Veteran served in the Republic of Vietnam and there is no affirmative evidence to the contrary that the Veteran did not have herbicide exposure while stationed in Vietnam. Review of the evidentiary record demonstrates the Veteran has post-service diagnoses of coronary artery disease and diabetes mellitus, type II, manifested to a compensable degree of at least 10 percent, as noted in VA treatment records. An initial record of the Veteran's diagnoses of coronary artery disease, hypertension, and diabetes mellitus, type II, was in November 2002. In January 2003, a VA treating physician noted the Veteran has had hypertension for 10-12 years and diabetes mellitus, type II for 4 years. Additional VA treatment records during the appeal period, dated from June 2010 to July 2012 in Virtual VA, reiterate these diagnoses and show the Veteran's required medication for coronary artery disease and restricted diet for diabetes mellitus, type II. As such, service connection is in order. See 38 U.S.C.A. § 5107; 38 U.S.C.A. §§ 3.102, 3.307(a)(6), 3.309(e). Service Connection for Peripheral Neuropathy of the Upper and Lower Extremities In seeking VA disability compensation, service connection may be granted on a secondary basis when there is sufficient evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310. Review of the record shows the Veteran is service connected for diabetes mellitus, type II, as initially granted above in this decision. The evidence also shows current diagnoses of peripheral sensory neuropathy in the bilateral upper and lower extremities associated with his diabetes mellitus, type II, as noted in VA treatment records dated from June 2010 to July 2012 in Virtual VA. For the reasons and bases discussed above and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for peripheral neuropathy of the bilateral upper and lower extremities as secondary to the service-connected diabetes mellitus, type II. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310. Service Connection for Tinnitus The Board finds that the Veteran is competent to report that he was exposed to loud noise in service and that his tinnitus began therein. Specifically, at the February 2012 VA Disability Benefits Questionnaire (DBQ) examination for hearing loss and tinnitus, he reported exposure to noise from tanks and guns without the use of hearing protection devices while in service. He also informed the examiner that he has noticed tinnitus for many years. In the April 2014 VA Form 9, the Veteran reported being around loud artillery and constant noise from trucks while in service. Most recently, at the January 2016 Board hearing, the Veteran reported exposure to noise from driving trucks and machine guns while in service and that he still has tinnitus. The Veteran's testimony is competent as tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran's testimony is also credible because his statements are supported by his service personnel records which note his military occupational specialty included motor vehicle operator and routeman and he completed foreign and/or sea service for over one year. Moreover, his lay statements regarding in-service noise exposure have been consistent throughout the course of the appeal. Likewise, the Board finds that the Veteran has a current disability of tinnitus based on his competent lay testimony, as noted in the February 2012 VA audiological examination report. See Charles, 16 Vet. App. 370. As the Veteran has provided competent and credible lay evidence of a disability that began during service and has existed since that time, service connection for tinnitus is warranted. Claims Withdrawn Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn at any time before the Board promulgates a decision and must be in writing except for appeals withdrawn on the record at a hearing. 38 C.F.R. § 20.204. At the January 2016 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated on the record that he wanted to discontinue his appeals for the issues of entitlement to service connection for right and left elbow disorders. As he has withdrawn his appeals as to the stated issues, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals on these issues, and they are dismissed. ORDER Service connection for a heart disorder, to include hypertension, as due to herbicide exposure is granted. Service connection for diabetes mellitus, type II, as due to herbicide exposure is granted. Service connection for peripheral neuropathy of the right upper extremity as secondary to diabetes mellitus, type II, is granted. Service connection for peripheral neuropathy of the left upper extremity as secondary to diabetes mellitus, type II, is granted. Service connection for peripheral neuropathy of the right lower extremity as secondary to diabetes mellitus, type II, is granted. Service connection for peripheral neuropathy of the left lower extremity as secondary to diabetes mellitus, type II, is granted. Service connection for tinnitus is granted. The appeal for entitlement to service connection for a right elbow disorder is dismissed. The appeal for entitlement to service connection for a left elbow disorder is dismissed. REMAND At the February 2012 VA DBQ examination for hearing loss and tinnitus, the Veteran did not demonstrate a current disability of bilateral hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385 (2015) (A hearing loss disability for VA compensation purposes is established, in part, when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater.). Nevertheless, since that examination, the Veteran reported in the April 2014 VA Form 9 that his hearing is only getting worse and agreed to report for another examination at the January 2016 Board hearing. As a result, the Board determines that a remand is needed to obtain an additional VA examination, and if a current disability is found to obtain a VA medical opinion, for the issue of entitlement to service connection for bilateral hearing loss. Next, at the February 2012 VA DBQ examination for knee and lower leg conditions, the Veteran reported having recurrent swelling and pain over his right knee, a constant knee pain on a level of 8/10 intensity, and denied any specific trauma over the right knee since separation from service. Following the physical evaluation and review of the claims file, the examiner opined that the Veteran's current right knee disorder is more likely related to his previous job as a truck driver than to one episode of right knee pain during service. The Board finds that a remand is needed to obtain an additional VA medical opinion for the issue of entitlement to service connection for a right knee disorder. When VA undertakes to provide a VA opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, further clarification is needed for the February 2012 VA medical opinion because review of the Veteran's service personnel records and his testimony at the January 2016 Board hearing indicate that he drove trucks while in service. Moreover, the VA examiner did not consider the Veteran's lay testimony, to include his complaints pursuant to VA treatment, as noted in Virtual VA, which show the Veteran's complaint in February 2011 of right knee pain for one month after twisting it two days prior, and in May 2011 of right knee pain for about three to four months and denied any injury to the knee. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file all relevant outstanding VA treatment records from any VA facility dated since July 2012. If the AOJ cannot locate such records it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. After completing the foregoing development and associating all additional records with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of any hearing loss disability that may exist. The entire claims file, to include all VBMS and Virtual VA files, must be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit a full history of this claimed disorder from the Veteran. If, and only if, diagnostic testing reveals the Veteran has a hearing loss disability for VA compensation purposes, the VA examiner must opine whether it is at least as likely as not, i.e. 50 percent or greater, that the hearing loss disorder manifested in or is otherwise related to the Veteran's military service from November 1962 to October 1966, to include noise exposure therein. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, such as his alleged in-service noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should explain why. 4. Obtain a clarifying medical opinion from an appropriate clinician regarding the Veteran's right knee disorder. If the examiner concludes that an additional examination is required, one should be provided. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. Based upon a review of the record and clinical findings, the VA examiner must provide the following opinion: is it at least as likely as not, i.e., 50 percent or greater, that the Veteran's current right knee disorder manifested in or is otherwise related to the Veteran's military service from November 1962 to October 1966, to include the January 1963 in-service right knee injury and duties as a motor vehicle operator therein. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology, to include as noted pursuant to VA treatment sessions in February 2011 and May 2011 and at the February 2012 VA examination. If there is any basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 5. Review the examination report(s) and medical opinions to ensure that they are in complete compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be reviewed on the basis of additional evidence. If any benefit sought is not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs