Citation Nr: 18158917 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 07-09 088 DATE: December 19, 2018 ORDER Service connection for diabetes mellitus, type II, is granted. Service connection for peripheral neuropathy of the bilateral upper and lower extremities is granted. Service connection for a disorder characterized by angina is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMANDED Service connection for hypertension is remanded. Service connection for a back disorder is remanded. Service connection for asthma is remanded. Service connection for a skin disorder is remanded. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from April 1971 to April 1973, with additional reserve service. 2. Diabetes is presumed related to in-service exposure to herbicide agents. 3. Peripheral neuropathy is caused by or permanently worsened in severity by the now-service-connected diabetes. 4. The Veteran was not diagnosed with a disorder characterized by angina during the pendency of this appeal. 5. The Veteran was not exposed to in-service acoustic trauma; hearing loss and tinnitus were not shown in service and are not causally or etiologically related to service. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II, is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Peripheral neuropathy of the bilateral upper and lower extremities is proximately due to, aggravated by, or the result of service-connected diabetes mellitus, type II. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for service connection for a disorder characterized by angina have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. Bilateral hearing loss was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. Tinnitus was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified as to these matters during a March 2010 Regional Office (RO) hearing. A transcript of this proceeding has been associated with the record. These appeals were subsequently remanded by the Board in June 2013 for additional development. Upon review of the claims file, the Board finds that substantial compliance with its prior remand directives has been achieved, such that it may now proceed with its review of the matters on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this respect, the Board acknowledges that its prior remand instructed the RO to confirm the Veteran’s unverified period(s) of reserve service. A January 2014 request for this information did not receive a response. However, an additional remand is not warranted at this time, as the Veteran is seeking service connection for the claimed disorders on the limited basis of in-service exposure to herbicide agents. As the Board concedes such exposure herein, a nexus decision is not precluded by the inability to identify the Veteran’s exact service dates. Additionally, the claims file appears to contain a complete copy of the Veteran’s service treatment records (STRs), including from his reserve service, such that all in-service illnesses or injuries are properly of record. As such, the Board finds that an additional remand would be against the Veteran’s interests and will instead proceed with its review of the merits at this time. Further, the June 2013 remand instructed the RO to obtain a complete list of chemicals that the Veteran was exposed to as a result of his military occupational specialty. According to a March 2014 Defense Personnel Records Information Retrieval System (DPRIS) response, this information is not a matter of record. As such, an additional remand to obtain this information is deemed futile. Finally, the June 2013 decision remanded service connection claims for costochondritis and a status-post left inguinal herniorrhaphy scar for the issuance of a Statement of the Case (SOC). The Veteran was advised that these matters would only be returned to the Board upon the receipt of a timely substantive appeal. As the Veteran did not submit a VA Form 9 following the issuance of the February 2018 SOC, these matters are not on appeal and are thus not for consideration at this time. Service Connection The Veteran is currently pursuing service connection for multiple disorders. In this respect, he specifically contends that the claimed disorders are causally related to in-service exposure to herbicide agents. As such, and given the evidence of record, the Board will largely limit its analyses to this theory of entitlement. Several of the claims have also been expanded based upon the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Diabetes Mellitus and Peripheral Neuropathy As to the above appeals, there is first competent evidence of current disabilities. Of note, the Veteran was diagnosed with type II diabetes mellitus and bilateral peripheral neuropathy of the upper and lower extremities during January and February 2017 VA examinations. VA medical records also note the Veteran’s history of these conditions and the treatment thereof. As such, the first element of service connection—a current disability—has been met with respect to both appeals. Next, the Veteran contends that he was exposed to herbicide agents in the pursuit of his duties as a chemical specialist at Johnston Island. The record is in controversy as to this point. Here, the Veteran’s Record of Assignments does not reflect his presence at Johnston Island at any time. Further, DPRIS found “no records of exposure to herbicides” in February 2008. Instead, an August 2001 VA dioxin study reported that the Veteran’s lipid-adjusted dioxin concentration for his blood sample was measured as 1.35 ppt, which corresponds to non-Vietnam veterans reporting no history of spraying herbicides in the military. In an October 2016 VA letter, it was held to be unlikely “that the blood level reported for the Veteran would be indicative of dioxin exposure from military service.” However, there is also positive evidence for consideration. Of note, an August 1972 STR reports a hand injury suffered during service at Johnston Island. Further, an October 1972 Letter of Commendation was issued in response to the Veteran’s recovery efforts on Johnston Island. A Fact Sheet received by VA in October 2016 clearly reports that approximately “1.5 million gallons of Agent Orange were stored at Johnston Island between April 1972 and September 1977.” Additionally, the Veteran’s Certificate of Release or Discharge from Active Duty identifies his in-service specialty as a decontamination specialist. As per an August 2012 private treatment letter and the Veteran’s own testimony, his related duties included the “prevention, maintenance, storage, cleaning and destruction of aging lethal chemical weapons.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the Veteran presents as a credible historian, as his testimony is well-documented throughout the record and consistent with the nature of his service. His testimony is additionally supported by an April 2013 buddy statement confirming his service at Johnston Island working directly with hazardous chemicals. Further, a February 2005 private treatment record notes a “positive test for exp[osure] to Agent Orange.” Upon review of the above, the Board concludes that the evidence is in equipoise as to the contended exposure. Thus, in interpreting the evidence in the light most favorable to the Veteran, the Board finds that he was exposed to herbicide agents during service. Such a finding requires triggers the consideration of presumptive service connection in this case, as certain diseases are presumed to have been incurred in-service if they manifest to a compensable degree within specified periods, and even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§3.307(a)(6), 3.309(e). As type II diabetes qualifies as one such disease, service connection is thus warranted on a presumptive basis for this limited appeal. To this extent, the Board acknowledges that the February 2017 VA examiner provided a negative nexus opinion in this case. However, the Board does not need to reach the weight assignable to this opinion because service connection is granted on a presumptive basis. However, presumptive service connection is not for application to the peripheral neuropathy appeal, as VA regulations establish that entitlement only prevails upon a finding of early onset peripheral neuropathy that manifests to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service. Id. Here, the first mention of neuropathy in the record appears in a December 2004 VA medications list, more than 30 years after the Veteran’s presumed exposure. Nonetheless, the Board finds competent evidence of a causal nexus between the Veteran’s now-service-connected diabetes and his peripheral neuropathy. In this respect, the January 2017 VA examiner opined that the Veteran’s peripheral neuropathy was “caused and made worse” by his long-standing diabetes. Although a detailed rationale is not offered in support of this contention, the accompanying examination report assesses the nature and onset of the Veteran’s disorders and their likely intersection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Additionally, the examiner possesses the requisite medical expertise to render a competent opinion regarding the etiology of the Veteran’s peripheral neuropathy, and there is no indication that she was not fully aware of the Veteran’s history or misstated any relevant facts in providing her opinion. This conclusion is also supported by a February 2017 VA examination diagnosing the Veteran with diabetic peripheral neuropathy “as a recognized complication” of his diabetes. As such, and considering the absence of a negative opinion from the record, reasonable doubt is resolved in favor of the Veteran and entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is granted on a secondary basis. Angina The Veteran also contends that service connection is warranted for a disorder characterized by angina as due to his in-service exposure to herbicide agents. At the outset, the evidence does not demonstrate that the Veteran was diagnosed with a disorder characterized by angina at any time during the pendency of this appeal. Instead, a February 2017 VA examiner concluded that the Veteran did not have, and had never been diagnosed with, a heart condition. This conclusion is supported by VA treatment records spanning the period on appeal, which are entirely silent for heart-related diagnoses and explicitly deny a history or current symptoms of angina. In the absence of a current disability, further inquiry into the in-service event or nexus elements is rendered moot and the appeal is thus denied. Briefly, the Board has considered the Veteran’s contention that he presents with a disorder characterized by angina; however, he lacks the requisite medical training and expertise to competently diagnose his observable symptoms. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, greater probative value is afforded to the medical evidence, which does not establish the existence of the claimed disorder. Hearing Loss and Tinnitus Finally, the Board turns to the Veteran’s audiological appeals. Here, there is competent evidence of the claimed disorders. In this regard, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores, using the Maryland CNC test, are less than 94 percent. 38 C.F.R. § 3.385. The Veteran most recently underwent VA examination in September 2014, during which audiological testing yielded the following results: Hertz 500 1000 2000 3000 4000 Right Ear 75 75 50 60 65 Left Ear 95 75 75 80 95 This level of hearing impairment satisfies the criteria of a hearing loss disability for VA purposes. Further, VA treatment records denote the Veteran’s history of tinnitus during the period on appeal. Additionally, he testified as to his symptomatology during the March 2010 DRO hearing. Layno, 6 Vet. App. at 469. Accordingly, the first element of service connection has been met for both appeals. However, the record does not support a finding of in-service acoustic trauma. In this respect, the Veteran’s in-service specialty as a chemical specialist has only a moderate probability of noise exposure. Further, the Veteran clearly denied a history of in-service acoustic trauma during his DRO hearing. Id. Indeed, when asked explicitly about the history of his hearing disabilities, the Veteran related them not directly to his active service and to any exposure to hazardous noise therein, but rather to his exposure to herbicide agents. The additional evidence of record, including the Veteran’s military records, do not otherwise establish such a history of exposure to hazardouse noise. As the second element (in-service incurrence) is not demonstrated, there is no basis to grant the claim and further inquiry into the nexus requirement is not required. See Kahana, 24 Vet. App. at 438 (VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). The Board has also considered the application of presumptive service connection to these appeals. However, the Veteran has not reported that his audiological disorders onset during service and have continued uninterrupted since that time, nor does the evidence otherwise establish an onset within one year of his separation. As such, the evidence does not establish that the Veteran’s hearing loss or tinnitus onset during the applicable timeframe, such that presumptive service connection is not for application. Accordingly, the preponderance of the evidence is against the claims such that the benefit-of-the-doubt rule is not applicable. The appeals are denied. Briefly, the Board acknowledges the Veteran’s general contention that all the claimed disorders are causally related to his in-service exposure to herbicide agents. However, there is no evidence of record to support this theory of entitlement as it pertains to audiological disorders. As such, a remand is not warranted to assess the merits of this theory of entitlement. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the remaining appeals. With respect to the Veteran’s hypertension, recently, the National Academy of Sciences, Engineering and Medicine (NAS) published an update finding that hypertension has moved from the “limited or suggestive evidence of an association” category to that of “sufficient” evidence of an association. Further, the Board has now granted service connection for the Veteran’s diabetes, and there is at least some evidence of a possible relationship between those disabilities. Accordingly, a new opinion is needed. With respect to the back and asthma appeals, February 2017 VA examiners provided negative nexus opinions. However, their opinions did not assess the Veteran’s contention that his current disorders are causally related to the conceded in-service exposure to herbicide agents. As such, the Board finds that these opinions are inadequate and a remand is now warranted to allow for addendum opinions to be obtained. With respect to the skin appeal, the Veteran similarly underwent VA examination in February 2017. However, a nexus opinion was not provided at that time upon the examiner’s conclusion that the Veteran did not present with any skin rash during evaluation. Such an opinion is inadequate, as the Veteran clearly presented with a skin condition during the pendency of this appeal. As such, a remand is now warranted to allow for a nexus opinion to be obtained. The matters are REMANDED for the following actions: Obtain addendum opinions for the Veteran’s hypertension, back, asthma, and skin claims. The claims file and a copy of this remand must be made available for review. In particular, the examiners are asked to offer medical opinions as to: a. Whether it is at least as likely as not that the Veteran’s hypertension is related to his exposure to herbicide agents, or whether it is at least as likely as not that his hypertension is proximately due to, the result of, or aggravated by his service-connected diabetes? b. Whether the Veteran has demonstrated back, asthma, or skin disorders at any time during the pendency of this appeal; c. For each diagnosed disorder, opine whether it is at least as likely as not that it began in service, was caused by service, or is otherwise related to service, including in-service exposure to herbicide agents in approximately 1972. In formulating the opinion, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to 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. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel