Citation Nr: 18161039 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-35 463 DATE: December 28, 2018 ORDER Entitlement to service connection for hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for Parkinson’s disease is denied. Entitlement to service connection for depression is granted. REMANDED Entitlement to a total disability rating based on individual employability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the evidence is sufficient to show that the Veteran’s current bilateral hearing loss is related to noise exposure in service. 2. The evidence is sufficient to show that the Veteran’s tinnitus is related to his service-connected hearing loss. 3. The evidence is insufficient to show that the Veteran’s Parkinson’s disease had its onset in service, manifested to a compensable degree within one year of separation, or is related to herbicide exposure in service. 4. The evidence is sufficient to show that the Veteran’s depression is aggravated by his service-connected knee disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.307, 3.309, 3.385 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for Parkinson’s disease have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for depression have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from August 1964 to August 1968. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also 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). For certain chronic disorders, such as hearing loss, tinnitus, and Parkinson’s disease, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin’s disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 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 that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). A veteran must have been present on the landmass or inland waterways of Vietnam at some point during his or her military duty to be entitled to the presumption of herbicide exposure. Haas v. Peake, 525 F.3d 1168 (2008). 1. Entitlement to service connection for hearing loss. The Veteran asserts that his hearing loss is associated with noise weapons noise exposure in service. See September 2015 Statement in Support of Claim. As previously noted, sensorineural hearing loss may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 then operates to establish when a hearing loss disability can be service connected. Id. at 159. For the purposes of applying the laws administered by VA, impaired hearing only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory 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. Based on the Veteran’s military occupational specialty, noise exposure is conceded. In addition, the September 2014 VA audiological evaluation showed a diagnosis of bilateral hearing loss pursuant to VA regulations. Thus, the issue that remains disputed is whether the Veteran’s current bilateral hearing loss had its onset in service, manifested to a compensable degree within one year of separation or is otherwise related to service. To this end, the evidence is conflicting. During the Veteran’s August 1964 enlistment examination, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 -10 5 5 LEFT 5 5 -10 -10 5 During a September 1967 audiogram, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 10 LEFT 5 5 5 10 15 During the Veteran’s March 1968 separation examination, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 10 LEFT 5 0 0 10 20 The Veteran’s March 1968 separation examination indicates he denied hearing loss. However, the service treatment notes show a threshold shift of 5 degrees, 10 degrees, and 5 degrees in the right ear at the 1000, 2000, and 4000 frequencies respectively. The Veteran also showed a threshold shift of 10 degrees, 20 degrees, and 15 degrees in the left ear at the 2000, 3000, and 4000 frequencies respectively. The Veteran underwent a VA audiological evaluation in September 2014. During the evaluation, the examiner opined that it was less likely than not that the Veteran’s hearing loss was caused by or a result of military service. The examiner reasoned that when comparing his August 1964 entrance examination to his March 1968 exit examination it is evidence that the left ear threshold shifted 20 dB at 3000 Hz. A threshold shift of 20 dB is considered significant and may indicate noise exposure or acoustic trauma. However, the Veteran’s hearing loss was still considered to be within normal limits in both ears for frequencies 500 through 6000 Hz upon discharge. The examiner further noted that the Veteran served as a support technician in service driving equipment to aircrafts. He was exposed to noise on the tarmac an average of 3 hours a day but sometimes more. He reported firing weapons with both hands and using hearing protection. The Veteran did not require a hearing conservation program. Also of record is a February 2015 statement from Dr. A.K. indicating that the Veteran noted tinnitus after exposure to aircraft noise. Dr. A.K. also noted that there were threshold shifts after extended noise exposure. Dr. A.K. stated, “[The Veteran’s] hearing loss and tinnitus [was] undoubtedly caused at least in part be excessive exposure to aircraft noise without any protection while serving on active duty in the air force.” In sum, September 2014 VA examiner noted that the Veteran’s threshold shift from entrance to separation was “significant” and may indicate acoustic trauma. In addition, Dr. A.K. opined that the Veteran’s hearing loss was caused at least in part to noise-exposure in service. As such, resolving reasonable doubt in the Veteran’s favor, the evidence is sufficient to show that his current hearing loss had its onset within service or manifested to a compensable degree within in one year of separation. Service connection for hearing loss is granted. 2. Entitlement to service connection for tinnitus The evidence shows a current diagnosis of tinnitus. See September 2014 audiological evaluation. The issue that remains disputed is whether the Veteran’s tinnitus has its onset in service, manifested to a compensable degree within one year of separation, or is otherwise related to service. During the September 2014 VA examination, the Veteran reported tinnitus in the left year beginning in 1969. The Veteran reported flying in from Amsterdam to London a few days prior to noticing the tinnitus and noted that this was his own noise exposure immediately before the tinnitus began. He reported the tinnitus went away for a few months but resurfaced a couple months later. The examiner opined that the Veteran’s tinnitus was at least as likely as not related to his hearing loss. The Board has determined that the evidence shows that Veteran’s hearing loss is related to service. Thus, the evidence is sufficient to show that the Veteran’s tinnitus is related to his service-connected hearing loss. Thus, service connection for tinnitus is granted. 3. Entitlement to service connection for Parkinson's disease. The Veteran asserts that his Parkinson’s disease is related to herbicide exposure in service. See December 2013 Report of General Information. Here, the evidence shows a diagnosis of Parkinson’s. See Private Treatment Notes. The issue that remains disputed is whether the Veteran’s Parkinson’s disease had its onset in service, manifested to a compensable degree within one year of separation, or is related to herbicide exposure in service. With respect to all theories of entitlement, the preponderance of the evidence is against the claim. Regarding direct service connection, the Veteran’s service treatment records are silent for complaints of or treatment for Parkinson’s disease. The Veteran’s March 1968 clinical evaluation at separation was negative for neurological disorders. In addition, the Veteran denied leg cramps, foot trouble, and neuritis. A January 2013 Parkinson’s Disability Benefits Questionnaire (DBQ) shows the Veteran was first diagnosed in January 2011. As the evidence does not show the Veteran’s Parkinson’s had its onset in service, service connection on a direct basis is not warranted. The Board has also considered whether the service connection is warranted on a presumptive basis based on Parkinson’s disease as a chronic condition. See 38 C.F.R. §§ 3.307, 3.309. Id. However, the evidence does not show – and the Veteran does not assert – that his Parkinson’s disease manifested to a compensable degree within one year of separation. The Veteran underwent a VA examination in October 1975 regarding his knee. The examination was negative for indication of Parkinson’s. Private treatment records from 2002 to 2003 show the Veteran was treated for shoulder and knee disabilities but are negative for any indication of Parkinson’s disease. Furthermore, the January 2014 Parkinson’s DBQ and a March 2014 letter from the Veteran’s private treatment provider indicate the Veteran was first diagnosed in January 2011 – over 40 years after separation. Thus, service connection on a presumptive basis is not warranted. Finally, regarding the Veteran’s herbicide exposure assertion, the Veteran’s personnel records are negative for service in Vietnam. The Veteran confirms that he did not have service in Vietnam, Thailand, or Korea. See May 2014 Report of General Information. The Veteran asserts that while stationed at the Laon-Couvron Air Force Base in France he inhaled pesticides that were being used in the agriculture fields where the base was located. See April 2016 Correspondence; November 2018 Appellant Brief. The Veteran reported he began experiencing falls in service. A May 2016 memorandum indicates that the evidence is not sufficient to show that the Veteran had herbicide exposure in service. In addition, the Department of Defense (DoD) has outlined a listing of location outside of Vietnam and the Korean DMZ where herbicides were used, tested, or stored. DoD does not have any record of pesticide use in France. Furthermore, the Veteran is not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the falls the Veteran reportedly experienced in service were related to his current diagnosis of Parkinson’s disease requires medical expertise to determine. As there the evidence is not sufficient to show that the Veteran was exposed to herbicides in service, service connection based on the herbicide exposure presumption is not warranted. In sum, service connection for Parkinson’s disease is not warranted under any theory of entitlement. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 4. Entitlement to service connection for depression, to include as secondary to a service connected left knee disability. The Veteran initially asserted, and the evidence indicated that his depression was secondary to his Parkinson’s disease. See June 2014 VA Treatment Records. As the Veteran is not service-connected for Parkinson’s disease there is no legal basis for service-connection secondary to Parkinson’s disease. However, during a July 2016 private psychological evaluation, the Veteran asserted that his service-connected knee disability causes mood problems. Dr. H.H. indicated that the Veteran’s service-connected left knee disability continues to manifest as a depressive disorder. Dr. H.H. further opined that the Veteran’s left knee disability aggravated his depressive disorder. The Board finds the medical opinion probative to the question at hand. Thus, service connection for depression – secondary to a left knee disability – is granted. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual employability. is remanded. Currently, the Veteran does not meet the schedular requirements for TDIU. Thus, the Board will defer consideration of TDIU to allow the Agency of Original Jurisdiction (AOJ) to assign disability evaluation for the claims granted herein. The matter is REMANDED for the following action: 1. Obtain any social security administrative records, if they exist, for the Veteran. 2. Provide a VA Form 21-8940 to the Veteran and ask him to provide information regarding the years he claims he has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities. Ask the Veteran to provide IRS tax returns for the claimed years and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 3. After assigning disability evaluations for the claims granted herein, readjudicate the TDIU claim. MARJORIE A. AUERR. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel