Citation Nr: 1800569	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-14 903	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to service connection for tinnitus.

2. Entitlement to service connection for diabetes mellitus type II, to include as secondary to herbicide exposure.

3. Entitlement to service connection for a skin condition, to include as secondary to herbicide exposure.


REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and his wife


ATTORNEY FOR THE BOARD

S. Freeman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1971 to May 1974, which included service in the Republic of Thailand.

This appeal comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee.  In a December 2012 rating decision, the RO again denied the Veteran's claims for service connection.

The Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2017.  A transcript of that hearing is associated with the claims file.

The issue(s) of diabetes mellitus and skin condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's currently diagnosed tinnitus was not present in service, was not manifested to a compensable disabling degree within the first year after discharge from service, and is not shown to be etiologically related to his active military service, to include in-service noise exposure.

CONCLUSION OF LAW

Tinnitus was not incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

With respect to the Veteran's claim for entitlement to tinnitus, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

As to VA's duty to assist the Veteran with his service connection claim, the Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran.  See generally 38 C.F.R. § 3.159 (c).  The record in this case includes service treatment records, private treatment record, and the Veteran's statements regarding this matter.

Additionally, VA examinations were conducted in October 2012 in connection with the claim decided herein.  A review of the VA examination reflects that it is adequate for the purpose of adjudicating the Veteran's claim.  Specifically, the examination report reflects diagnosis and opinion which are congruent with the other evidence of record and were rendered following a thorough review of the relevant records, including treatment records.  The examiner's opinion is accompanied by a complete rationale.  38 C.F.R. § 3.159 (c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Because tinnitus is subjective, its existence is generally determined by whether or not a veteran claims to experience it; thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


Background and Analysis

The Veteran seeks service connection for tinnitus.  He attributes his current tinnitus to exposure to jet engine noise during service in Thailand.  The Veteran's military occupational specialty (MOS) was personnel specialist.

The Veteran's service treatment records are silent for complaint, treatment or diagnosis of tinnitus.  The Veteran's service separation examination in March 1974 showed normal hearing bilaterally, and is silent for tinnitus.

The Veteran was afforded a VA examination in October 2012, where he claimed tinnitus had its onset 3-5 years prior.  The Veteran reported that tinnitus was incurred in or caused by noise exposure during active service.  He reported a history of military noise exposure which primarily included jet engine noise and denied having hearing protection during service.

Finally, the VA examiner reported that the Veteran's tinnitus is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure.  As rationale, the examiner opined, that the Veteran reported that his tinnitus began 3-4 years ago, well after 1974, nearly 35 years after separation from the service.  The examiner indicated, per IOM there is no scientific evidence to support delayed-onset tinnitus due to noise exposure.  The examiner noted that based on this rationale, the Veteran's tinnitus is deemed less likely than not caused by or a result of military noise exposure.

Contrary to his statement in October 2012, at his October 2017 Board hearing, the Veteran testified that he first noticed noise in his ears while stationed in Thailand, and testified that he reported his tinnitus sometime in the early 80s, and was told that there was nothing they could do for the ringing in his ears.  He further testified that he did not seek treatment for tinnitus after service because he was told people have it and that there is nothing that could be done about it.  See Board hearing transcript at p.19.  However, the Board finds that this differing account of having tinnitus since service is not credible as it is directly contradicted by the statements which the Veteran made at the time of the VA examination.

The Board also notes that the Veteran has offered his own opinion on etiology, stating that he currently has tinnitus that is causally related to his active service.  The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of his current tinnitus, this determination requires medical expertise.  Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007).  Therefore, the Board affords more probative weight to the VA examiner's opinion as a whole than the Veteran's own contentions.

The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application.  Gilbert, 1 Vet. App. at 54-56.  Therefore, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved.  Service connection for tinnitus is not warranted.


ORDER

Entitlement to service connection for tinnitus is denied.

REMAND

Although the Board regrets any additional delay, further development is needed prior to final adjudication of the appeal.

The Veteran seeks entitlement to service connection for diabetes mellitus, type II and skin condition he states are due to exposure to herbicide during his service in the Republic of Thailand.

Private treatment record dated in August 2012 indicates that the Veteran was diagnosed with diabetes mellitus, type II in August 2012.  There is currently no diagnosis for skin condition.

The Veteran contends in his Notice of Disagreement, Form 21-4138 that as a personnel specialist, it was required that he frequently go to the airfield perimeter to meet aircraft to pick up and deliver personnel.  Additionally, he stated, as an enlisted man he was assigned to guard duties that placed him on the perimeter of the airfield.  According to the Veteran, these duties exposed him to the Agent Orange that was sprayed at Ubon Air Force Base, and he claimed that this exposure resulted in his current diabetes and skin condition.

In October 2017, the Veteran once again testified that he smelled herbicides in the atmosphere while in Thailand, and stated that he frequented the perimeter to pick up and deliver personnel, thereby exposing himself to Agent Orange.  Lastly, the Veteran testified that he experienced diabetes symptoms in the military and was told by a VA doctor at the Cookeville VA Clinic that he has diabetes and was prescribed Metformin.  The Board also notes that the Veteran reported in his hearing that he had been diagnosed with diabetes four to five years after service.  An attempt should be made to obtain such records.  

The Veteran also testified that he reported experiencing skin rashes in the early 80s, about the same time he was told he has diabetes.  In light of the Veteran's testimony a remand is appropriate to obtain outstanding treatment records, and to afford the Veteran a VA examination to ascertain the etiology of the Veteran's skin condition.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination).

Accordingly, the case is REMANDED for the following action:

1. Obtain all outstanding VA treatment records relevant to the matters being remanded, to include from the Cookeville VA Clinic, and associate the records with the record.

2. Provide the Veteran with a VA Form 21-4142, Authorization to Disclose Information to VA, and a VA Form 21-4142a, General Release for Medical Provider Information to VA, to identify all relevant treatment from private health care providers.  All attempts to obtain these records must be documented in the record.  The Veteran must be notified of any inability to obtain the requested documents.  Allow for an appropriate amount of time for response and complete any additional development resulting from the Veteran's response.

3. Schedule the Veteran for a VA examination with a dermatologist or physician to determine the nature and etiology of his skin condition.  The examiner must be provided access to the electronic claims file and he or she must indicate review of these items in the examination report.  All necessary testing must be completed.

The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the skin condition is due to service, to include the Veteran's claimed exposure to herbicides.

A complete rationale should be provided for any opinion or conclusion expressed.

4. After the development requested is completed, readjudicate the claims on appeal.  If any benefit sought remains denied, then furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board

The Veteran 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).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs