Citation Nr: 1820459 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 17-66 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II (DM II), to include as due to herbicide exposure. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus 4. Entitlement to service connection for glaucoma, to include as due to DM II. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). REPRESENTATION Veteran represented by: Veterans of the Vietnam War, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1959 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2018, the Veteran testified before the undersigned at a Travel Board Hearing. A transcript of that hearing is of record. Although the Veteran claimed service connection for PTSD, the record shows that he has been diagnosed with MDD. The Board has recharacterized the claim to include both disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for an acquired psychiatric disorder and glaucoma 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 not shown to have served in an area in which exposure to herbicide agents may be presumed, and is not shown to have been exposed to herbicide agents in service. 2. DM II was not shown in service or for many years thereafter; and the preponderance of the evidence fails to establish that the Veteran's diagnosed DM II is related to his active service. 3. The Veteran has experienced bilateral hearing loss since his military service. 4. The Veteran's tinnitus is causally or etiologically related to his military service or service connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for DM II, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309 (2017). 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this decision, the Board grants service connection for tinnitus and bilateral hearing loss. In view of the Board's favorable decisions, a discussion of VA's duties to notify and assist in regards to those claims is unnecessary. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the claim for service connection for DM II, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board acknowledges that the Veteran was not afforded a VA examination in conjunction with his claim for service connection for DM II. However, this deficit does not render the existing record unusable for purposes of adjudicating the claim on the merits. McLendon v. Nicholson, 20 Vet. App. 79, 81(2006), sets out that a VA examination must be provided when there is: (1) competent evidence of current disability or recurrent symptoms; (2) establishment of an in-service event, injury, or disease; (3) an indication that the current disability may be associated with the in-service event; and (4) insufficient competent medical evidence to decide the claim. As will be further discussed below, the competent evidence does not establish an in-service event, injury, or disease relating his DM II to his period of active service. The second and third elements of the McLendon test have not been met. Therefore, the absence of a medical examination addressing these claims does not constitute a breach of VA's duty to assist. Legal Criteria 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 (2012). Generally, 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), where the veteran asserts entitlement to service connection for a chronic condition (i.e. DM II, sensorineural hearing loss, and tinnitus), but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303 (b), the avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303 (a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including diabetes mellitus, when manifested to a compensable degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a) (2016). DM II Specific Laws and Regulations For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, 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); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). DM II is included in this list. 38 C.F.R. § 3.309 (e). Notably, VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). Presumptive herbicide exposure requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii). Instead, it requires service on the landmass and includes service on the inland waterways. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). Merits The Veteran seeks service connection for DM II on the basis of being exposed to herbicide agents (Agent Orange) while serving on the USS Blackfin. See December 2017 VA Form 9. His DD Form 214 and personnel records confirm active service during the Vietnam era. Those records also show that he entered the "Vietnam combat zone" for purposes of Vietnam Service Medal eligibility. However, none of these records establish service in Vietnam or that the Veteran was otherwise exposed to herbicide agents, to include Agent Orange (AO). To the contrary, the collective record weighs against the Veteran being in circumstances which would have allowed for exposure to such tactical herbicides. At the outset, the record is negative for decorations or medals which indicate that the Veteran served within the territorial borders of Vietnam. He does not the contrary. He has specifically and repeatedly denied on the ground service in Vietnam. See Board Hearing Transcript. In light of this information, the Board will limit its consideration to whether exposure occurred aboard the USS Blackfin. For clarity, the Board notes that service on a deep-water vessel off the shores of Vietnam is generally not considered service in Vietnam. However, the Court has held that VA's interpretation of the regulations designating certain bodies of water offshore as "blue water," rather than inland, "brown water" waterway, was inconsistent with the purpose of VA regulations pertaining to inland waterways and the presumption of herbicide exposure in the Republic of Vietnam. Gray v. McDonald, 27 Vet. App. 313 (2015). In response to the Gray decision, VA revised its adjudication procedures manual, to include a revised definition for inland waterways and offshore waters. See VBA Manual M21-1, IV.ii.1.H.2.c.; see also VBA Manual M21-1, IV.ii.2.C.3.m. That said, the Veteran has not contended that he or the USS Blackfin traveled inland. He specifically denied the possibility of his vessel being able to travel inland because of its size in relation to the shallow waters in the area. See Board Hearing Transcript. He also denied ever leaving his vessel to traverse inland waterways on smaller ships. Id. Importantly, VA's Compensation and Pension Service has identified a number of "blue water" Navy vessels that conducted operations on the inland "brown water" rivers and delta areas of Vietnam and certain other vessel types that operated primarily or exclusively on the inland waterways, which are now subject to the presumption of exposure to herbicides under 38 C.F.R. §§ 3.307 and 3.309. The USS Blackfin is not listed as one of the vessels specifically recognized as having conducted "brown water" operations in Vietnam. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, updated January 1, 2018. In sum, the preponderance of the evidence is against a finding of in-service exposure to herbicide agents. The record is devoid of credible evidence, which may indicate the Veteran was exposed to herbicide agents during service. There is no evidence indicating that the Veteran traveled inland or was otherwise in Vietnam or that the USS Backfin had such contact. There is no presumption of exposure for being stationed to a blue water vessel that is stationed of the coast of Vietnam. He is thereby not entitled to the legal presumption of herbicide exposure. See 38 C.F.R. § 3.307 (a)(6)(iii). While the Veteran has not establish service connection for DM II based upon herbicide agent exposure, direct service connection can also be established by showing that DM II was otherwise incurred in or aggravated by service. Stefl v. Nicholson, 21 Vet. App. 120-23 (2007). Notwithstanding this possibility, there is no probative evidence of a nexus between the Veteran's military service and the development of DM II. STRs, including periodic and separation examinations are entirely negative for any complaints, findings, or diagnosis relating to DM II. There is also no indication that the disease manifested within a year of discharge; rather the evidence indicates it was first diagnosed many years after service separation. See SP Queen Anne Treatment Medical Records and See generally, Dr. M. W., D. O. September 2007 Treatment Medical Record (noting recent DM II diagnosis). Accordingly, there is no evidence to support theories of service connection on a direct basis, presumptive basis, or under the basis of continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.309. The Board acknowledges that on initial application for compensation the Veteran reported a belief that he had been diagnosed with DM II at the Seattle VAMC in 1985. See March 2016 VA 21-526EZ, Fully Developed Claim. However, in June 2016 Correspondence the VA Puget Sound Health Care System indicated having no treatment medical records for the Veteran prior to April 2016. He was explicitly informed of this finding in his December 2017 Statement of the Case; and to date has not provided clarification. As such, the record is devoid of indication that his DM II manifested within a year of service. In light of the aforementioned, the preponderance of the evidence is against a finding of service connection for DM II on a direct basis, on the presumptions in favor of chronic diseases, or on the basis of continuity of symptomatology. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for DM II, to include as due to herbicide agent exposure, is denied. Hearing Loss and Tinnitus The Veteran asserts that his currently diagnosed bilateral sensorineural hearing loss is the result of in-service noise exposure. In relevant part, he testified to receiving weapons training in handheld weapons and cannons while serving. He also reported experiencing continuous noise exposure as a result of the submarine in which he was stationed having extreme engine noise echoing throughout the vessel. Sensorineural hearing loss and tinnitus are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable. Turning to the record, on May 2016 VA audiological examination, an examiner diagnosed bilateral sensorineural hearing loss. The accompanying audiological report established bilateral speech recognition and threshold scores sufficient to meet VA standards for hearing loss. 38 C.F.R. § 3.385. Such establishes a current hearing loss disability. As to in-service injury, service treatment records are silent for diagnosis or complaints of hearing loss. Nevertheless, in-service noise exposure will be conceded as personnel records confirm the Veteran received repeat training in handguns, rifles, and torpedo readiness. See 1968-1974 Administrative Remarks Personnel Records. The Board also finds it reasonable, given the confined space of a submarine, that the Veteran would have experience some exposure to engine noise. Moreover, the Veteran has competently, credibly, and consistently reported experiencing hazardous noise while in-service. What remains for determination is whether the Veteran's current hearing loss diagnosis can be linked to his in-service injury. The record contains a negative opinion from a May 2016 VA examiner. However, this opinion is afforded no probative weight. In brief, the examiner failed to truly consider the Veteran's competent reports of suffering from hearing loss since service separation. The opinion is also predicated on the Veteran's hearing being normal on service separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993)( failure to meet VA's criteria for hearing loss at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability). In so doing, the examiner failed to address the significance of potential threshold shifts at the 1000 and 3000 hertz level between his March 1975 and February 1984 reenlistment audiological examinations. Correspondingly, the examiner did not address an arguably significant threshold shift at the 4000 hertz level in the left ear at the time of December 1984 separation examination. Finally, the examiner failed to provide a rationale for the determination that the Veteran's hearing loss was more likely due to the natural aging process. In light of these omissions, the Board has considered remanding the claim to address the deficiencies in the May 2016 examination opinion. However, such is not deemed necessary as the evidence of record is sufficient to grant service connection under 38 C.F.R. § 3.303 (b). Here, the Veteran has credibly reported experiencing hearing loss since service. See March 2016 VA 21-526EZ, Fully Developed Claim and Board Hearing Testimony. These reports appear to be supported by the record. He reported noticing hearing loss near the end of his final period of service. Such reports appear to match the aforementioned audiological testing which notes fluctuating hearing during his final years of service. Finally, the record is negative for a contradiction to the Veteran's reports. In light of the collective evidence of record, and the lack of competent negative opinion to the contrary, the Board finds that service connection for bilateral hearing loss is warranted. The benefit of the doubt will be conferred in the Veteran's favor, and remand is not necessary. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). With regard to the Veteran's tinnitus claim, the May 2016 VA examiner also provided a negative opinion as to nexus. However, the Board finds this opinion inadequate. In pertinent part, the examiner did not address the Veteran's reports of symptomatology in and since service. The examiner also did not address the significance of potential threshold shifts noted in-service. Finally, the negative opinion was partially predicated on the examiner not seeing evidence of noise damage to the Veteran's hearing, but the examiner did not specify what constituted evidence of noise damage. In light of these deficiencies, the Board finds the 2016 opinion inadequate to service as the basis for a denial of service connection. That said, the Veteran is not generally competent to self-diagnose medical disorders unless he has specialized medical training or the diagnosis may be based on unique and readily identifiable features. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Tinnitus is considered to be a disorder that the Veteran may diagnose, as it is identified purely by its symptoms. Charles v. Principi, 16 Vet. App. 370 (2002). Thus, although the Veteran's service treatment records do not indicate complaints of tinnitus while on active duty, the Board may accept that the Veteran has tinnitus based on his own complaints where, as here, there is no reason to doubt the credibility of his statements. Additionally, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural hearing loss. See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems." The MERCK Manual, Section 7, Ch. 85, Inner Ear. The Veteran is now service-connected for bilateral sensorineural hearing loss. The Veteran has testified that his tinnitus has been present in and since separation from active service. Given the fact that the Veteran is service-connected for bilateral sensorineural hearing loss, in conjunction with the provision from The MERCK Manual, and the Veteran's statements, the Board concludes that there is support for the conclusion that his tinnitus is attributable to his period of active service or his service-connected hearing loss. In view of the foregoing, reasonable doubt exists as to whether the tinnitus has existed since service or has developed as his hearing loss disability has progressed. Reasonable doubt must be resolved in favor of the claimant and service connection is granted. 38 C.F.R. 3.102 (b) (2017), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for DM II is denied. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMAND Acquired Psychiatric Disability The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. In May 2016, a VA examiner diagnosed the Veteran with PTSD and MDD. The diagnosis of PTSD was predicated upon the Veteran's reported stressor of being aboard the USS Guardfish while it hit an underwater mountain and began to take on water. Correspondingly, the diagnosis of MDD was predicated on the condition being secondary to his development of PTSD; thus it is dependent upon establishing service connection for PTSD. Unfortunately, the record is currently negative for verification of the Veteran's reported stressor. That said, in November 2016, the RO requested verification of any incidents occurring on the USS Guardfish on December 2, 1984. See November 2016 VA Correspondence. In response, the Naval History and Heritage Command provided a 1984 Command History Report which essentially indicated that the Veteran's vessel was already dry-docked for "overhaul" modifications and upgrades beginning in 1984. See December 2016 Correspondence. The Board finds that additional development is required. Importantly, service personnel records confirm that the Veteran was a member aboard the USS Guardfish beginning at least as early as June 1982. Therefore, a specific request for records prior to 1984 should be made. In addition, within its December 2016 correspondence, the Naval History and Heritage Command instructed the RO of an additional mechanism for potentially obtaining records. The RO was instructed to make a request for declassification of the Veteran's records. Problematically, there is no indication of the RO informing the Veteran of this potential mechanism for obtaining personnel records or conducting additional development. The Board finds that such notification is critical as the Veteran within his December 2016 notice of disagreement requested assistance in identifying other means of obtaining his classified records. In light of the aforementioned, a remand is required to make a final attempt to assist the Veteran in verifying his stressor. Glaucoma The Veteran seeks service connection for glaucoma, to include as due to DM II. Service connection for DM II has been denied herein. Nevertheless, the Board must still consider entitlement to service connection for glaucoma on a direct basis. Following review of the record, the Board finds that a VA examination must be obtained. Service treatment records contain repeat notations of the Veteran seeking treatment for eye conditions in-service, including diagnosed iritis, potentially diagnosed chronic mild recurrent conjunctivitis, and left eye trauma. See September 1974 and January 1975. However, the record is negative for a VA examination or opinion considering these in-service diagnoses and complaints in relation to his currently diagnosed disabilities; thus a remand is necessary. Finally, the Board notes that service treatment records indicate the Veteran had varying forms of refractive error, a defect, throughout service. See Reports of Medical Examination. For VA purposes, congenital or developmental defects, are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303 (c), 4.9, 4.127. This is because defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90. Notwithstanding this distinction, service connection may still be granted if the evidence shows aggravation of the congenital or developmental defects during service on account of a superimposed disease or injury. See Carpenter v. Brown, 8 Vet. App, 240 (1995). In light of the aforementioned, a VA examination and opinion should be obtained to ascertain the nature and etiology of the Veteran's claimed eye disabilities. Accordingly, the case is REMANDED for the following action: (Please note, 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 undertake any necessary development to independently verify the Veteran's claimed stressor of hitting an underwater mountain while aboard the USS Guardfish. In completing this action, the AOJ should request the following: a. Verify the Veteran's full dates of service aboard the USS Guardfish. b. Then contact the Naval History and Heritage Archives Branch with a renewed request for information for the Veteran's entire period of service. Note, the AOJ's original request only asked for records associated with a December 2, 1984 incident. c. If the in-service stressor cannot be verified or conceded, the AOJ should notify the Veteran and his representative of this fact, explain the efforts taken to obtain this information and describe any further action to be taken. They should be given an opportunity to respond. d. If the appropriate records custodian indicates that the Veteran's pertinent records regarding his reported stressor are currently classified, provide the Veteran with the appropriate method for requesting that the records be declassified and request clarification as to whether he wishes to proceed with adjudication of his claim without attempting to have the records declassified. See December 2016 Naval History and Heritage Archives Branch Correspondence. If he wishes to have the records declassified assist with his attempt to do so. 2. The Veteran must be scheduled for a VA examination with an appropriate examiner to address the nature and etiology of his claimed glaucoma. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. a. Identify all disabilities of the eyes including glaucoma. b. For any eye disability, to specifically include glaucoma, the examiner should state whether it is as likely as not that the disability had its onset in service or is otherwise etiologically related to the Veteran's active service, to include his noted in-service eye trauma, potentially diagnosed mild chronic recurrent conjunctivitis, and iritis. See September 1974-January 1975 Treatment Medical Records. c. For any disorder that had its onset prior to active service, the examiner should indicate whether it is a congenital or developmental defect versus disease. Note, in- service reports of medical examination consistently note the Veteran suffered from defective eyes. d. If any pre-service disorder is a congenital or developmental defect, the examiner should provide an opinion as to whether it was subject to a superimposed disease or injury during service, and if so, describe the resultant disability. 3. Finally, readjudicate the claims. If the benefits sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant 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). This claim 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs