Citation Nr: 19190897 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 17-08 270 DATE: December 3, 2019 ORDER Entitlement to service connection for bilateral hearing loss has been withdrawn. Entitlement to service connection for basal cell carcinoma has been withdrawn. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for insulin resistance is remanded. Entitlement to service connection for left lower extremity neuropathy is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision by the Board, the Veteran submitted written correspondence requesting to withdraw appeals concerning the issues of entitlement to service connection for bilateral hearing loss and basal cell carcinoma. 2. Affording the Veteran the benefit of the doubt, his tinnitus has been shown to have been incurred during active service with symptoms ever since separation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals seeking service connection for bilateral hearing loss and basal cell carcinoma have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2018). 2. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to September 1969. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2019. Dismissals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in September 2019, the Veteran submitted a signed statement indicating that he would like to withdraw his claims for bilateral hearing loss and basal cell carcinoma; hence, with regard to these issues, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and the appeal with regard to these issues only is dismissed. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires evidence showing: (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection requires a current disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). There must be competent evidence of current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In this case, tinnitus is recognized as a chronic disease under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “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. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for tinnitus The Veteran asserts that he started having ringing in his ears during service and has experienced the ringing in his ears since service. See October 2019 Board hearing trans. p. 6. The Veteran reported in-service noise exposure including test firing weapons and noise from helicopters. The record reflects that the Veteran conducted aircraft maintenance and served as a supply sergeant. His DD-214 lists Expert M14 as a decoration. Thus, noise exposure has been conceded. During the July 2014 VA examination, the Veteran reported that his tinnitus began at least 15 years prior. The examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. He noted that there was no report of tinnitus in the Veteran’s service treatment records and no significant changes in the Veteran’s hearing seen during his military service. He opined that the Veteran’s tinnitus is a symptom associated with his current hearing loss which is less likely than not related to the Veteran’s military noise exposure. Service treatment records are absent any complaints or treatment related to hearing problems, to include tinnitus. Indeed, the September 1969 separation examination did not document any hearing problems. Post-service, the Veteran filed a claim for service connection for tinnitus in 2013, over 40 years after separation. Although, the July 2014 VA audiologist included a diagnosis of tinnitus and opined that hearing loss and tinnitus were less likely than not related to service, the opinion regarding the etiology of the Veteran’s tinnitus is not probative as to whether the Veteran’s tinnitus is related to service as it stands in contrast with statute and regulations noting service connection for hearing loss may be granted even when a hearing loss is not shown in service or demonstrated upon discharge from service. See 38 U.S.C. § 1113; 38 C.F.R. § 3.303; Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When reviewing the medical opinions in this case, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran’s tinnitus is related to his service. Although the Veteran exclaimed to the July 2014 VA examiner that his tinnitus began 15 years prior, he noted during the Board hearing that it began in service and that it has been so long that his memory has faded. The Board finds that the Veteran’s assertions regarding the onset of his tinnitus and symptoms since service are credible. He has stated that he experienced tinnitus since service and experiences it today, and there is no persuasive evidence of record indicating that the Veteran’s statements are not credible. Here, the Veteran has provided a date of onset of tinnitus during service, and the Veteran is competent to state that he has experienced tinnitus since service to the present. No probative opinion to the contrary is of record. Given the facts noted above and resolving any reasonable doubt in favor of the Veteran, the Board concludes that the criteria for service connection for tinnitus are met. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for insulin resistance is remanded. The Veteran contends that service connection is warranted for his insulin resistance. The Board notes that Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability and, in the absence of a proof of present disability, there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term “disability” as used for VA purposes refers to impairment of earning capacity due to disease, injury, or defect, rather than the disease, injury, or defect itself. Allen v. Brown, 7 Vet. App. 439, 448 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296-297 (1991). Certain diagnoses, such as elevated triglycerides and high cholesterol, are not, in and of themselves, considered disabilities for purposes of VA compensation. See 61 Fed. Reg. 20440, 20445 (May 7, 1996); See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities) (2018). In this regard, VA has specifically found that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities for VA compensation purposes. See 61 Fed. Reg. 20440, 20445 (May 7, 1996). In such cases, the evidence must show that a Veteran has a current disability that is related to such diagnoses in order for service connection to be warranted. Private and VA treatment records list various assessments for the Veteran including insulin resistance, metabolic syndrome and dysmetabolic syndrome. The term “metabolic syndrome” is defined as “a combination including at least three of the following: abdominal obesity, hypertriglyceridemia, low level of high-density lipoproteins, hypertension, and high fasting plasma glucose level.” Dorland’s Illustrated Medical Dictionary 1863 (31st ed. 2007). Given the definition of metabolic syndrome, it is unclear as to whether it meets VA’s definition of a “disability.” Thus, a VA examination is required in order to obtain an opinion as to whether the Veteran’s currently diagnosed metabolic syndrome/insulin resistance is a disability for VA compensation purposes. If the Veteran’s metabolic syndrome/insulin resistance, in and of itself, is not a disability, the examiner is asked to opine whether the Veteran has any current disabilities related to the metabolic syndrome/insulin resistance. 2. Entitlement to service connection for left lower extremity neuropathy is remanded. 3. Entitlement to service connection for right lower extremity neuropathy is remanded. The Veteran also contends that his right and left lower extremity peripheral neuropathy are related to his active service. He stated that he first noticed symptoms of neuropathy shortly after he came home from Vietnam. See October 2019 Board hearing trans. p. 8. The Veteran’s service records indicate that he served in the Republic of Vietnam. Thus, herbicide agent (Agent Orange) exposure is conceded based on the circumstances of the Veteran’s military service. See 38 U.S.C. § 1116 (f). Peripheral neuropathy is not among the diseases presumed service connected for veterans who served in Vietnam. However, the Veteran is not precluded from establishing service connection for these disabilities based on the theory that they were actually caused by herbicide exposure. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). In addition, the Veteran contends that his peripheral neuropathy may be secondary to his insulin resistance. Thus, the claim is inextricably intertwined with the remanded service connection claim for insulin resistance which is also being remanded. Henderson v. West, 12 Vet. App. 11, 20 (1998), Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). See also Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (an appellant’s alternative theories of entitlement to service connection are encompassed within a single claim). On remand, a VA examination is warranted to determine the nature and etiology of the Veteran’s peripheral neuropathy. The matters are REMANDED for the following actions: 1. Obtain records of treatment that the Veteran may have received at any VA health care facility since January 2016. All such available documents should be associated with the claims file. 2. Then, schedule the Veteran for an appropriate VA examination in order to determine the nature and etiology of the Veteran’s metabolic syndrome/insulin resistance. The examiner should review the claims file and should note that review in the report. All indicated testing should be conducted, and a complete medical history should be elicited from the Veteran. All findings and conclusions should be supported by a rationale, and the examiner should reconcile the opinion with all other evidence of record, including the service treatment records, post-service VA and private treatment records. Specifically, the examiner should provide the following information: a) Provide an opinion as to whether the Veteran’s current metabolic syndrome/insulin resistance is, in and of itself, a disease, injury, or defect. The examiner should also indicate whether the Veteran’s metabolic syndrome/insulin resistance results in a disease, injury, or defect and report the nature and severity of all such manifestations. b) If the current metabolic syndrome/insulin resistance is a disease, injury, or defect, or results in such, the examiner should opine as to whether it is at least as likely as not that the current metabolic syndrome/insulin resistance had its onset in service or is the result of a disease or injury in service, to include exposure to herbicides (Agent Orange) in the Republic of Vietnam. A negative opinion based on the rationale that such conditions are not a disease presumptively associated with exposure to certain herbicide agents is inadequate. The examiner must consider direct service causation. In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements regarding the incurrence of his metabolic syndrome/insulin resistance, and the continuity of symptomatology. The rationale for any opinion offered should be provided. 3. Schedule the Veteran for an appropriate VA examination in order to determine the nature and etiology of the Veteran’s peripheral neuropathy. The examiner should review the claims file and should note that review in the report. All indicated testing should be conducted, and a complete medical history should be elicited from the Veteran. All findings and conclusions should be supported by a rationale, and the examiner should reconcile the opinion with all other evidence of record, including the service treatment records and post-service VA and private treatment records. Specifically, the examiner should provide the following information: Provide an opinion as to whether the Veteran’s current peripheral neuropathy of the right and left lower extremity had its onset during the Veteran’s service or is otherwise related to service, to include his presumed exposure to herbicides (Agent Orange) in the Republic of Vietnam. A negative opinion based on the rationale that such conditions are not a disease presumptively associated with exposure to certain herbicide agents is inadequate. The examiner must consider direct service causation. In the alternative, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s metabolic syndrome/insulin resistance caused or aggravated the Veteran’s peripheral neuropathy. In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements regarding the incurrence of his peripheral neuropathy, and the continuity of symptomatology. The rationale for any opinion offered should be provided. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.