Citation Nr: 1804706 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-48 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure. 5. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure. 6. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to combat exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1969 to August 1973. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a June 2008 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas. The issues of entitlement to service connection for bilateral hearing loss, hypertension, prostate cancer, diabetes mellitus, and PTSD 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 tinnitus is etiologically attributable to his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1132, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). The Board finds that the evidence of record supports a grant of service connection for tinnitus. First, there is evidence of a current disability. The Veteran has indicated that he has tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Second, there is evidence of an in-service event, disease, or injury, as the Veteran provided competent and credible lay statements regarding noise exposure in service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Specifically, the Veteran has reported that he was exposed to loud noises during his active service, and that the onset of tinnitus began in the 1970's and has remained constant in both ears since. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current tinnitus is related to service. In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (2012). Although there is evidence against the claim, the Veteran has asserted that his tinnitus began while in service. See October 2012 examination. The Veteran has consistently stated that his tinnitus began in service and has continued since then. The Board finds that the Veteran has competently and credibly reported a continuity of symptomatology of tinnitus, and accords the Veteran's statements significant probative weight. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed.Cir.1997) (it is the "duty [of] the Board to analyze the credibility and probative value of evidence"); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (it is the province of the Board to weigh and assess the evidence of record). The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for tinnitus is warranted. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER Entitlement to service connection for tinnitus is granted. REMAND Regarding the Veteran's claim for entitlement to service connection for bilateral hearing loss, the Board notes that the Veteran was afforded a VA examination in October 2012. At this VA examination, the examiner opined that the Veteran's bilateral hearing loss was not etiologically attributable to his active service. However, the Board finds this examination is inadequate to decide the claim for multiple reasons. First, the examiner appears to base her opinion on the finding that the Veteran did not have bilateral hearing loss while in service. Indeed, the examiner did not address the possibility of delayed-onset of hearing loss nor did she discuss how bilateral hearing loss generally presents or develops in most cases. 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); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Next, while the examiner found that there were no significant threshold shifts in-service, she did not discuss the importance of that finding. Finally, the examiner noted that the Veteran's separation examination indicated the Veteran had normal hearing and, thus, opined his military noise exposure did not affect his hearing. The Board notes that the Veteran had a separation audiological evaluation after April 1973, at which time auditory thresholds were recorded. 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. In this case, when converted to ISO-ANSI, the Veteran's audiogram appears to show an increase in hearing difficulty in some frequencies as compared to the Veteran's entrance examination from August 1969. The October 2012 examiner, however, did not discuss the significance, if any, of the threshold shifts between the Veteran's enlistment and separation examinations. Thus, the Board finds that the VA examination report is inadequate to decide the claims. Regarding the Veteran's claims for entitlement to service connection for hypertension, prostate cancer, diabetes mellitus, and PTSD, the Board notes that the claims file contains a May 2008 memorandum reflecting that the RO attempted to, and could not, verify the Veteran's herbicide agent and combat exposure contentions. However, since May 2008, the Veteran has provided more specific details and evidence in support of his contentions that he served in Vietnam, which resulted in herbicide agent and combat exposure. The Veteran contends that he spent approximately no more than 60 days at a time serving in the Republic of Vietnam, but that he was not officially assigned to any unit. He stated that he had significant periods of time in Vietnam, but that his time in Vietnam is classified. He further stated that his MOS included scout sniper, which resulted in combat in Vietnam. He also stated that he was responsible for dismantling items containing or exposed to Agent Orange. Also, in a February 2011 phone call with the RO, the Veteran stated that the believed it would be difficult to prove his service in Vietnam as he was not assigned to any particular unit. With regards to the Veteran's combat exposure, the Veteran stated that he underwent enemy fire, and specifically that he witnessed several casualties while disembarking a CH-53 aircraft in Phu Bai sometime in 1970. See July 2008 VA Form 21-0781. It is imperative that VA satisfy its duty to assist the Veteran in developing a claim, to obtaining records relevant to the claim, especially if those records are in Federal custody. 38 C.F.R. § 3.159 (2017); see also 38 U.S.C. § 5103A (2012). Accordingly, the case is REMANDED for the following action: 1. The AOJ should send the Veteran a letter requesting that he provide further information as to the approximate dates, location(s), and nature of the alleged exposure to herbicide agents during his active service. 2. Based on the information provided by the Veteran in response to the above development, the AOJ should contact the appropriate service department and/or records custodian(s), to include NPRC, with a request for copies of any pertinent records, to verify the Veteran's alleged herbicide agent exposure. The AOJ should then refer the case to the JSRRC for verification of exposure to herbicide agents or to make a formal finding that sufficient information required to verify herbicide agent exposure does not exist based on the information provided by the Veteran. 3. The AOJ should send the Veteran a letter requesting that he provide further information as to the approximate dates, location(s), and nature of the alleged combat exposure during his active service. 4. Based on the information provided by the Veteran in response to the above development, the AOJ should contact the appropriate service department and/or records custodian(s), to include NPRC, with a request for copies of any pertinent records, to verify the Veteran's alleged combat exposure. The AOJ should then refer the case to the JSRRC for verification of combat exposure or to make a formal finding that sufficient information required to verify combat exposure does not exist based on the information provided by the Veteran. 5. After completing the above development, the AOJ should schedule the Veteran for a VA audiological examination to address the claim for service connection for hearing loss. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. The examiner should opine as to whether it is at least as likely as not (50% degree of probability or higher) that the Veteran has bilateral hearing loss that had its onset in service, was caused by service, or is otherwise related to military service, to include whether any injury due to loud noise exposure experienced therein contributed to his bilateral hearing loss. 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. It should also be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. 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 when there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should specifically address whether there was any threshold shift or notch at higher frequencies during service or shortly thereafter that may be indicative of acoustic trauma. The examiner should also comment on the likelihood that loud noises experienced resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service. If the examiner finds 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. The examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. 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. 6. After completing the above development, the Veteran should be afforded a VA examination to determine the nature and etiology of hypertension. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, service personnel records, post-service medical records, and lay assertions. The examiner should note that disorders diagnosed after discharge may still be service-connected if all the evidence establishes the disorder was incurred in service. The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's current hypertension disability manifested in service or is otherwise causally or etiologically related to his military service. 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. (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.) 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. 7. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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. §§ 5109B, 7112 (2012). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs