Citation Nr: 18144876 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-37 852 DATE: October 25, 2018 ORDER Entitlement to service connection for right big toe is dismissed. Entitlement to service connection for erectile dysfunction is dismissed. Entitlement to service connection for hypertension is dismissed. Entitlement to service connection for depression is dismissed. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for diabetes mellitus, type II, as a result of exposure to herbicides, is granted. Entitlement to service connection for right lower extremity peripheral neuropathy associated with diabetes mellitus, type II, is granted. Entitlement to service connection for left lower extremity peripheral neuropathy associated with diabetes mellitus, type II, is granted. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, at the July 2017 Board hearing and in a statement received in July 2017, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for right big toe. 2. Prior to the promulgation of a decision in the appeal, at the July 2017 Board hearing and in a statement received in July 2017, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for erectile dysfunction. 3. Prior to the promulgation of a decision in the appeal, at the July 2017 Board hearing and in a statement received in July 2017, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for hypertension. 4. Prior to the promulgation of a decision in the appeal, at the July 2017 Board hearing and in a statement received in July 2017, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for depression. 5. The Veteran has experienced tinnitus since his separation from service. 6. The Veteran was exposed to herbicide agents while stationed in Thailand; he has a current diagnosis of diabetes mellitus, type II. 7. Right lower extremity peripheral neuropathy is an associated complication of the Veteran’s diabetes mellitus, type II. 8. Left lower extremity peripheral neuropathy is an associated complication of the Veteran’s diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran pertaining to the issue of entitlement to service connection for right big toe have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for withdrawal of a substantive appeal by the Veteran pertaining to the issue of entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 3. The criteria for withdrawal of a substantive appeal by the Veteran pertaining to the issue of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 4. The criteria for withdrawal of a substantive appeal by the Veteran pertaining to the issue of entitlement to service connection for depression have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 5. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 6. The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 8. The criteria for service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to September 1968. The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge in July 2017. The Veteran was previously represented by a private attorney. However, in August 2015, the attorney withdrew as the Veteran’s representative. Although the Veteran was accompanied by a person at the Board hearing, it does not appear that he submitted a new VA Form 21-22 or VA Form 21-22a appointing a new representative. As such, the Veteran is recognized as proceeding pro se. Regardless, with respect to the claims decided herein, in light of the award of service connection, representing a full grant of the benefits sought on appeal. The Board finds no prejudice to the Veteran in the issuance of this decision. Withdrawn Claims Entitlement to service connection for right big toe, erectile dysfunction, hypertension and depression Under 38 U.S.C. § 7105, 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 in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the July 2017 Board hearing and in a statement received in July 2017, the Veteran withdrew his appeal as to the issues of entitlement to service connection for right big toe, erectile dysfunction, hypertension and depression. Hence, there remain no allegations of errors of fact or law for appellate consideration of these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. Service Connection Claims Entitlement to service connection for tinnitus At the Board hearing, the Veteran asserted that he began experiencing tinnitus during service. He has further reported that his symptoms have continued since that time. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Tinnitus, as an organic disease of the nervous system, is a “chronic disease” under 38 C.F.R. § 3.309 (a). See Fountain at 258, 274-75 (2017) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309 (a) include tinnitus as an organic disease of the nervous system). The Board concludes that while the Veteran’s tinnitus was not diagnosed during service, there has been continuity of the same symptomatology since service. In this regard, the Veteran’s military occupational specialty of military police is consistent with in-service noise exposure. Moreover, the Agency of Original Jurisdiction (AOJ) has conceded such noise exposure and awarded service connection for bilateral hearing loss. Importantly, the Veteran has reported that his tinnitus began in service, and has continued to the present. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Tinnitus is a disability that is subject to lay observation and, in turn, the Veteran is competent to report current symptoms of tinnitus that began in service. See Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, as the Veteran has been consistent in his assertions, there is no reason to doubt his credibility. The Board recognizes that the June 2013 found that the Veteran’s tinnitus was not related to service as the Veteran reported that it began after service. However, again at the Board hearing, the Veteran asserted that he has experienced tinnitus since service. Significantly, the VA examiner found that the Veteran’s tinnitus was at least as likely as not a symptom associated with the Veteran’s hearing loss. Again, the Veteran’s hearing loss has been attributed to his in-service noise exposure. In light of the above, the Board finds that the evidence is in equipoise. As such, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran suffered from tinnitus in service and it has continued to the present. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that, based on evidence of continuous symptoms of tinnitus since service, presumptive service connection for tinnitus is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for diabetes mellitus, type II The Veteran contends that he developed diabetes mellitus due to his exposure to herbicides and that such condition also resulted in bilateral lower extremity peripheral neuropathy. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be 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 service. 38 U.S.C. § 1116 (f). The Veteran served during the presumptive period, as noted hereinabove; however, the current evidence of record does not reflect any service in the Republic of Vietnam. Rather, the Veteran asserts that he was exposed to herbicides in Thailand, and it has been established that the Veteran served in Thailand from November 1967 to September 1968. Importantly, M21-1, Part IV, Subpart ii, 1.H.5.b. sets forth the criteria for exposure in Thailand. Under this, the first requirement is service at Royal Thai Air Force Bases (RTAFB) in U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang. If a Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. The Veteran’s MOS was military policeman. Service personnel records show that the Veteran was the Noncommissioned Officer (NCO) of the Thai Security section. The AOJ appeared to deny the claim as the Veteran did not serve at one of the RTAFBs. In this regard, a response from the Defense Personal Records Information System indicated that the Veteran’s company was located in Sattahip, Thailand. However, at the Board hearing, the Veteran testified that U-Tapao RTAFB was approximately two miles from Sattahip. He continued that he was NCO in charge of the Royal Thai Security Guards on the Army Base and the perimeter of U-Tapao. The Board takes judicial notice of an internet search that revealed that U-Tapao was by the port of Sattahip. Thus, the Veteran’s statements concerning being on the perimeter of U-Tapao appear credible as they are corroborated by other evidence. Thus, in light of the above, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran was presumed to have been exposed to herbicides when he was located at the U-Tapao RTAFB. Veterans exposed to Agent Orange or other listed herbicide agents are presumed service-connected for certain conditions, including diabetes mellitus, type II, and acute and subacute peripheral neuropathy, even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). With respect to peripheral neuropathy, effective September 6, 2013, VA amended its regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide exposure. The amendment removed the requirement that an acute or subacute peripheral neuropathy appear within weeks or months after exposure and removed the requirement that the condition resolve within two years of the date of onset in order for the herbicide presumption to apply. To effectuate this change, VA replaced the terms “acute and subacute” and “transient” peripheral neuropathy with “early onset.” Under these amendments, early-onset peripheral neuropathy must still become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer must be transient. There is still no herbicide-related presumption of service connection for “delayed-onset chronic” peripheral neuropathy. Rather, early-onset peripheral neuropathy must manifest within one year of herbicide exposure, for presumptive purposes. 78 Fed. Reg. 54763-01 (Sept. 6, 2013). Based on VA and private clinical records, the Board finds that the Veteran has a current diagnosis of diabetes mellitus, type II. Accordingly, because he currently suffers from a disease that has been identified as associated with herbicide exposure (i.e., diabetes mellitus, type II) and was exposed to herbicide agents in service during his service in Thailand, the Board finds that the Veteran is entitled to service connection for diabetes mellitus, type II, on a presumptive basis. 38 C.F.R. § 3.309 (e). Entitlement to service connection for right and left lower extremities peripheral neuropathy Importantly, the medical evidence of record also shows that the Veteran suffers from diabetic lower extremity peripheral neuropathy. Thus, as service connection has been awarded for diabetes, service connection is also warranted for right and left lower extremities peripheral neuropathy as an associated complication of his diabetes. REASONS FOR REMAND Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Veteran was lasted afforded a VA examination addressing the severity of his hearing loss in June 2013, over five years ago. However, additional medical records and the Veteran’s hearing testimony appear to indicate that his hearing loss may have increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his hearing loss. In light of the need to remand, additional VA clinical records dated from May 2017 to the present should be obtained. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2017 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats