Citation Nr: 1800630 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 15-31 203A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from August 1950 to June 1971, including service in Vietnam. His awards and decorations include the Air Force Commendation Medal, National Defense Service Medal, and Vietnam Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The case is now under the jurisdiction of the RO in St. Paul, Minnesota. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for acquired psychiatric disorder, to include PTSD, and bilateral hearing loss 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 is presumed to have been exposed to herbicide agents while serving in the Republic of Vietnam. 2. Diabetes mellitus type II is presumed due to herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Post-service treatment records show that the Veteran was diagnosed with diabetes mellitus type II in 1989. Notably, the Veteran contends that his diabetes mellitus Type II is due to in-service exposure to herbicide agents. His military occupational specialty was a tactical fighter and he reported that he flew "in and out" of and "sometimes [he] would stay" in Vietnam. See November 2011 and August 2012 VA Form 21-4138 Statement In Support of Claim; August 2012 Correspondence; DD-214. If a veteran was exposed to herbicide agents during service, certain listed diseases, are presumptively service-connected. 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309 (e). A veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is 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 U.S.C.A. § 1116(f). Thus, if the veteran "served in the Republic of Vietnam" as that term is defined by the applicable regulation, service connection for diabetes mellitus type II, would be warranted. The Veteran's service personnel records confirm that he served in the 428th Fighter Squadron at Takhli Royal Thai AFB, Thailand from March 15 to June 7, 1968. See August 2012 Correspondence; November 2012 Memorandum. Although there was a formal finding that the 428th Fighter Squadron flew mostly night combat sorties against North Vietnam, the Board finds that there is no affirmative evidence contradicting the Veteran's lay assertion that he was on the ground in the Republic of Vietnam as part of this particular flight operation. See November 2012 Memorandum; August 2012 Correspondence. Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that herbicide agent exposure is conceded on this basis. See 38 C.F.R. § 3.307(a)(6)(iii). Moreover, as the record establishes that the Veteran's diabetes mellitus requires oral prescriptions and diet control, the manifestation of his disability is consistent with at least a 10 percent evaluation under the appropriate diagnostic code. See 38 C.F.R. § 4.119, Diagnostic Code 7913. As a result, service connection for diabetes mellitus is warranted on a presumptive basis. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). ORDER Service connection for diabetes mellitus type II, to include as due to herbicide agent exposure, is granted. REMAND Although the Board sincerely regrets the additional delay, it finds that additional evidentiary development is necessary to ensure that there is a complete record upon which to decide the Veteran's claims for entitlement to service connection for acquired psychiatric disorder, to include PTSD, and bilateral hearing loss. Acquired Psychiatric Disorder The Veteran contends that he has PTSD and attributes his acquired psychiatric disorder to combat in Vietnam. See November 2013 Notice of Disagreement; November 2017 Appellate Brief. VA psychiatric examinations were conducted in April 2011 and September 2012. The April 2011 VA examiner diagnosed the Veteran with anxiety disorder with depressive features. In September 2012, the VA examiner found that the Veteran's symptoms appeared to be best accounted for by his dementia and currently precluded the possible presence of any other psychiatric diagnosis. However, February 2014 VA treatment records show that the Veteran was receiving treatment for depression and PTSD. Additionally, the Veteran presented with dementia with superimposed depressive disorder. In light of the Veteran's continued symptoms associated with an acquired psychiatric disorder, the Board finds that a new VA psychiatric examination is warranted. See McClendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Bilateral Hearing Loss The Veteran contends that his hearing loss is due to constant in-service exposure to jet engine noise. See December 2013 Notice of Disagreement. Further, the Veteran stated that he was not provided any hearing protection. With the exception of a post-service job at the Alabama Power Company, he denied any occupational or recreational exposure. See April 2011 VA audiological examination report. In a December 2012 addendum opinion, a VA audiologist found that the Veteran's induction and separation exams indicated that his hearing was within normal limits, bilaterally. She opined that the Veteran's hearing loss was not a result of military noise exposure. However, the Board finds that the opinion did not provide a rationale in support of this opinion. Additionally, the examiner did not address the possibility of delayed-onset of hearing loss. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In that regard, the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure 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 as opposed to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Based on the foregoing, the Board finds a new VA examination and opinion are warranted. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should be provided a VA examination from a qualified medical professional to determine the nature and etiology of any acquired psychiatric disorder that may be present. The claims file and a copy of this REMAND must be made available to the examiner for review. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, prior VA examination reports, and lay statements and assertions. The examiner should note that the Veteran has received, among other things, an Air Force Commendation Medal, National Defense Service Medal, and Vietnam Service Medal, and that VA has conceded combat exposure. All pertinent symptomatology and findings must be reported in detail. The examiner should identify all current psychiatric disorders. If any previously diagnosed disorder is no longer present, the examiner must provide an explanation. Specifically, the examiner must address the Veteran's diagnoses of anxiety disorder with depressive features, depression, and PTSD. With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors and instruct the examiner that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should comment on the link between the current symptoms and any verified in-service stressor and/or the fear of hostile military or terrorist activity. For each disorder identified, the examiner must state whether it is at least as likely as not (a 50 percent or greater probability) that that any currently diagnosed psychiatric disorder was caused or aggravated by the Veteran's period of active service, or whether it at least as likely as not, had its onset during service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The AOJ should forward the Veteran's claim to an otolaryngologist concerning the likelihood that the Veteran's hearing loss is related or attributable to his active duty service, to specifically include his reports of noise exposure during service. The examiner must be provided a copy of this REMAND. The examiner should opine as to the following: Is it "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) that the Veteran's bilateral hearing loss had its onset during service or is related to any incident of service. In making this assessment, the examiner should consider the Veteran's statement that his bilateral hearing loss is related to in-service noise exposure, to include the Veteran's statement that he was constantly exposed to jet engine noise without hearing protection. See December 2013 Notice of Disagreement; April 2011 VA audiological examination report. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should also be noted that the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure 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 as opposed to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Regarding the bases for the opinions, please comment on the likelihood that the loud noises experienced by the Veteran, resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service. If you find auditory hair cell damage to be a likely result of the military noise exposure, please comment on the likelihood that such damaged hair cells would result in a greater permanent hearing loss than otherwise would be manifest. As the previous VA examiner did not, the Board would appreciate the otolaryngologist to specifically comment on the impact, if any, of the line of research conducted by Dr. Sharon G. Kujawa, including the following: "Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth" by S. Kujawa, M.D., and M.C. Liberman (2006). J Neurosci. 2006 Feb 15; 26(7): 2115-2123. Kujawa SG, Liberman MC (2009) Adding insult to injury: cochlear nerve degeneration after "temporary" noise-induced hearing loss. J Neurosci. 2009 Nov 11; 29(45): 14077-85. Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift. JARO 12:605-616. Furman AC, Kujawa SG, Libermann MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates. J. Neurophysiol. 110, 577-586. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, 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 matter or 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). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs