Citation Nr: 1800494 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 12-00 209A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for memory loss. 2. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides. 3. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 4. Entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicides. 5. Entitlement to service connection for coronary artery disease, to include as due to exposure to herbicides. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for bilateral sensorineural hearing loss. 8. Entitlement to service connection for a respiratory disorder. 9. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1964 to June 1968, and from July 1970 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (hereinafter Agency of Original Jurisdiction (AOJ)). In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic files, including the Content Legacy Manager and Veterans Benefit Management System (VBMS) claims files, using Caseflow Reader. Some relevant records are located in the Content Legacy Manager, and all records are now in these electronic systems. In an October 2017 statement, the Veteran requested waiver of initial review by the AOJ for further evidence submitted concerning this appeal. See 38 C.F.R. § 20.1304(e) (2017). The issue of entitlement to service connection for a bilateral foot disorder is REMANDED to the AOJ. FINDINGS OF FACT 1. Service connection for memory loss, as a manifestation of the Veteran's service-connected acquired psychiatric disorder, has already been established and compensated for, and there is no "controversy" or justiciable issue" currently before the Board. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran served on the ground for two days in the Republic of Vietnam and, thus, was exposed to herbicides. 3. The Veteran has diagnoses of prostate cancer, diabetes mellitus, and coronary artery disease, which are presumed due to herbicide exposure in service. 4. The Veteran's diagnosed peripheral neuropathy is secondary to his diabetes mellitus. 5. Bilateral sensorineural hearing loss disability per VA standards is not shown by the evidence of record. 6. Tinnitus loss is not shown to have manifested in service or to otherwise be related to an event in service. 7. A respiratory disorder is not shown to have manifested in service or to otherwise be related to an event in service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for memory loss is dismissed due to the absence of a controversy at issue. 38 U.S.C. § 7105(d) (2012); 38 C.F.R. §§ 4.14, 4.130, Diagnostic Code 9434 (2017). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for coronary artery disease have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. 6. The criteria for entitlement to service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.3.102, 3.303, 3.307, 3.309, 3.385. 7. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for entitlement to service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues concerning the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Laws and Regulations Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process - or relatively close thereto - can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases 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. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The use of continuity of symptomatology to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The law also establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), to include type II diabetes mellitus, coronary artery disease and prostate cancer, if manifested to a compensable degree at any time after active service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 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 utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Normal puretone thresholds during service do not necessarily preclude service connection. See 38°C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994). In adopting the current rating criteria for tinnitus under Diagnostic Code 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or "true" tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or "pseudo-tinnitus"), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033 -01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Whenever 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 Veteran. 38 U.S.C.A. § 5107(b). Service Connection for Memory Loss The Veteran seeks entitlement to service connection for memory loss. During a November 2009 VA examination to evaluate the Veteran for an acquired psychiatric disorder, the examiner noted that the Veteran reported his memory was poor, and he had mildly impaired remote and recent memory. He is currently service-connected for an acquired psychiatric disorder which is rated as 70 percent disabling under Diagnostic Code 9434. The assigned 70 percent rating under Diagnostic Code 9434 specifically contemplate the symptom of memory loss in the lesser rating criteria. Pyramiding, that is, evaluating the same disability under different diagnostic codes, is prohibited under 38 C.F.R. § 4.14, and the United States Court of Appeals for Veterans Claims has held that pyramiding is disfavored "unless the regulation expressly provides otherwise." Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). As service connection for memory loss, as a manifestation of his major depressive disorder, has already been established and compensated for, there is no "controversy" or "usticiable issue" currently before the Board. The claim, therefore, must be dismissed. 38 U.S.C. § 7105(d). See Shoen v. Brown, 6 Vet. App. 456, 457 (1994); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection for Prostate Cancer, Diabetes Mellitus, Peripheral Neuropathy, and Coronary Artery Disease The Veteran seeks entitlement to service connection for prostate cancer, diabetes mellitus, peripheral neuropathy and coronary artery disease based on exposure to herbicides. He currently has diagnoses of prostate cancer and diabetes mellitus with secondary peripheral neuropathy. See September 2012 VA Treatment Records; July 2008 Private Medical Records. The Veteran has also undergone a coronary artery bypass surgery as a result of his diagnosed coronary artery disease. See January 2009 Private Medical Records. During his first period of active duty, the Veteran served on board the USS Bon Homme Richard as an aviation support equipment mechanic. While the AOJ was unable to determine whether the Veteran had in-country service in the Republic of Vietnam, the AOJ did confirm service in the "official waters" of the Republic of Vietnam. See, e.g., September 2008 Request for Information. The AOJ also confirmed that deck logs revealed aircraft were launched from and recovered on the USS Bon Homme Richard. See May 2011 DPRIS Response. The Veteran has made consistent and detailed statements regarding his service in-country. He traveled from the USS Bon Homme Richard to Saigon to repair two downed aircraft with bullet-hole damage. He has stated that it was a two-day operation, first to inspect the aircraft, and then to return with the necessary parts to repair the planes. The Veteran estimates he was in Saigon for approximately 16 hours. See February 2010 Veteran Statement; see also July 2009, August 2009, November 2009, and May 2011 Veteran Statements. The Veteran is competent to report geographical locations of missions on which he served. In this case, the record reflects that he served as an aviation support equipment mechanic on board the USS Bon Homme Richard in the waters of the Republic of Vietnam. The Board understands that a flight manifest for a brief duty assignment is likely unavailable, and the Board finds no evidence impeaching the Veteran's report of flying to Saigon to repair damaged aircraft. The available deck logs confirm that aircraft launched from and recovered on the USS Bon Homme. As the service record confirms many details of the Veteran's statement, as the Veteran's description of duties is consistent with his known circumstances of service, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran set foot in Vietnam as reported. See generally VA Adjudication Manual, M21-1, part IV.ii.1.H.2(f). As such, service connection for prostate cancer, diabetes mellitus, and coronary artery disease on a presumptive basis is warranted as herbicide exposure has been established. Additionally, July 2008 private medical records reflect peripheral neuropathy is a result of the Veteran's diabetes mellitus. Therefore, entitlement to service connection for peripheral neuropathy as secondary to diabetes mellitus is warranted. 38 C.F.R. § 3.310. Service Connection for Hearing Loss and Tinnitus The Veteran seeks entitlement to service-connection for bilateral hearing loss and tinnitus. Service department audiometric readings taken in American Standards Association (ASA) units must be converted to International Standard Organization (ISO) units. The Veteran's service treatment records reflect that, upon enlistment, he underwent an audiological examination. In November 1964, his puretone threshold values taken in ASA units and were as follows (converted to ISO units as shown in parentheses): HERTZ (FOR ISO add) A 500 (15) B 1000 (10) C 2000 (10) D 3000 (10) E 4000 (5) RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 5 (10) The enlistment examination demonstrates that the Veteran's hearing was normal in both ears. The Veteran also underwent an audiological examination upon separation after his first period of service, in May 1968. However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. At the time of the Veteran's May 1968 separation examination, puretone thresholds, in decibels, were as follows: HERTZ (FOR ISO add) A 500 (15) B 1000 (10) C 2000 (10) D 3000 (10) E 4000 (5) RIGHT 10 (25) 5 (15) 0 (10) 0 (10) 5 (10) LEFT 15 (30) 10 (20) 0 (10) 5 (15) 5 (10) The separation examination demonstrates that the Veteran's hearing was normal in both ears under either measurement for the purpose of applying the laws administered by VA. 38 C.F.R. § 3.385. In September 2009, VA issued a formal finding determining that the Veteran's service treatment records for his second period of active duty service could not be obtained. At a February 2009 VA examination, audiometric testing showed puretone thresholds, in decibels, as follows: HERTZ A 500 B 1000 C 2000 D 3000 E 4000 RIGHT 10 15 15 30 35 LEFT 10 15 15 35 35 Speech discrimination scores were 96 percent bilaterally. The Veteran's hearing was normal in both ears. The Veteran also reported that he had bilateral constant tinnitus "for the past ten years." Based on this report, the examiner determined that tinnitus was less likely than not etiologically related to service. In the absence of proof of a current disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). After reviewing the entire record, the most probative evidence of record reflects that the Veteran does not have a current diagnosis of bilateral sensorineural hearing loss as defined at 38 C.F.R. § 3.385, and has not met the criteria for such a diagnosis during the pendency of this appeal. McClain, 21 Vet App. 319, 321 (2007) (holding the requirement of a current disability is satisfied when the claimant has a disability at the time the claim if filed or during the pendency of the appeal). Additionally, the evidence of record indicates that he Veteran's tinnitus began around 1999, over 25 years after active duty service. The Veteran has provided no testimony or statements that he experienced tinnitus during active duty service, or that tinnitus has been continuous since service. There is no competent evidence of an association with tinnitus and noise exposure in service. As such, there is no basis to award service connection for tinnitus and no duty on the part of VA to obtain further opinion. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (holding that a conclusory generalized statement that a service illness caused his present medical problems was insufficient to trigger duty to provide medical examination as this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case). Entitlement to service connection for bilateral sensorineural hearing loss and tinnitus is denied. Service Connection for a Respiratory Disorder The Veteran seeks entitlement to service connection for a respiratory disorder. The Board notes that the Veteran has stated that he was exposed to aircraft engine exhaust while working on a carrier flight deck 18 to 24 hours a day. See August 2010 Veteran Statement. The available service treatment records do not reflect any treatment for a respiratory disorder during service. The Board notes that VA has been unable to locate service treatment records from the Veteran's second period of active duty service. The Board recognizes that it has a heightened obligation to assist the Appellant in the development of the case, and to explain findings and conclusions, as well as to carefully consider the benefit-of-the-doubt rule when records in the possession of the government are presumed to have been destroyed. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Appellant. See Russo v. Brown, Vet. App. 46 (1996). The medical evidence in the claims file does not reflect any treatment for or diagnosis of a respiratory condition other than atelectasis following cardiac surgery in 2009. There is no competent evidence associating any current respiratory disorder as having an in-service onset or otherwise related to an event in service. The Veteran has not alleged recurrent/persistent symptoms since service. As such, there is no basis to award service connection for a respiratory disorder and no duty on the part of VA to obtain further opinion. See Waters, 601 F.3d 1274 (Fed. Cir. 2010). Thus, entitlement to service connection for a respiratory disorder is denied. ORDER The claim of entitlement to service connection for memory loss is dismissed. Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for peripheral neuropathy is granted. Entitlement to service connection for coronary artery disease is granted. Entitlement to service connection for bilateral sensorineural hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a respiratory disorder is denied. REMAND The Veteran seeks entitlement to service connection for a bilateral foot disorder. May 1967 service treatment records reflect treatment for a swollen foot. During a November 2009 VA examination, the examiner diagnosed the Veteran with bilateral pes cavus and heel spurs. The examiner indicated that diabetes and diabetic neuropathy were risk factors for pes cavus, but did not offer an opinion as to whether the pes cavus was etiologically related to diabetes mellitus. The decision above has granted service connection for diabetes mellitus. The Board also notes that the Veteran has been diagnosed with tinea pedis. See July 2012 VA Treatment Records. Under these circumstances, an additional medical opinion is needed to determine whether any diagnosed bilateral foot disorder is caused or aggravated by his service-connected diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records since November 2012. 2. Forward the Veteran's claims file to a qualified examiner for an addendum opinion addressing the nature and etiology of any diagnosed bilateral foot disorder, to include pes planus, heel spurs, and tinea pedis. The examiner must review the Veteran's Legacy Content Manager and VBMS files. All clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should answer the following questions: (a) Is it at least as likely as not (50 percent or greater possibility) that any diagnosed bilateral foot disorder had its onset in service or is etiologically related to or aggravated by service? (b) Is it at least as likely as not (50 percent or greater possibility) that any diagnosed bilateral foot disorder is caused or aggravated (i.e., caused an increase in severity of) by his service-connected diabetes mellitus? In providing these opinions, the examiner must address the following: * The November 2009 VA examination reflecting diagnoses of pes cavus and heel spurs, and indicating pes cavus may be related to diabetes mellitus; and * July 2012 VA treatment records reflecting treatment for tinea pedis. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of sleep impairment (i.e., a baseline) before onset of the aggravation. If an examination is needed, one should be scheduled. All opinions expressed must be supported by complete rationale. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he or she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), by a deficiency in the record (i.e., additional facts are required), or by the examiner himself or herself (because he or she does not have the needed knowledge or training). 3. Thereafter, above, readjudicate the claim. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs