Citation Nr: 21001389 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-32 217A DATE: January 7, 2021 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a compensable disability rating for a left foot ingrown great toenail is remanded. Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s hearing loss is not attributed to his military service. 2. The Veteran’s tinnitus began during his active duty military service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the issues of entitlement to a compensable disability rating for a left foot ingrown toenail, and service connection for hearing loss and tinnitus in May 2018. These issues have since been returned for further adjudication. Service Connection Generally, to establish service connection, a claimant must show: (1) 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 incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as an organic disease of the nervous system like sensorineural hearing loss or tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Hearing loss The Veteran contends that he suffered from hearing loss as a result of his military service, including his occupational specialty as a tank commander. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or 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 threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service treatment records demonstrate that the Veteran’s hearing at the thresholds from 500 to 4000 Hz were normal at entrance and separation from service. During his March 1970 separation examination, he was asked if he had experienced any hearing loss and replied that he had not. The Veteran responded affirmatively when asked at separation whether he had experienced other ailments and the Board would thus expect the Veteran to have also responded affirmatively to having experienced hearing loss if he had noticed any hearing loss during service. The Board finds the report of medical history at separation from service to be highly probative as it was done contemporaneous to service and for the purpose of identifying disability at that time. Notably, in a September 2014 notice of disagreement, the Veteran indicated he first noticed hearing loss after he separated from the military. The Veteran underwent a VA examination in April 2013. The examiner opined that it was less likely than not that his hearing loss was related to his military service. According to the examiner, the Veteran’s hearing upon enlistment and separation were within normal limits with no clinically significant shifts noted. Service treatment records do not reveal any hearing loss sustained during his time in service. The Veteran’s current degree and configuration of hearing loss are consistent with age-related effects and the Veteran also reports a long history of non-military occupational noise exposure subsequent to service. It was noted that some hearing loss was present at 6000 Hz during service. However, this is not a frequency used by VA in determining the presence of a hearing loss disability. 38 C.F.R. § 3.385. Another opinion was obtained in September 2019. The VA examiner opined that it was less likely than not that the Veteran’s hearing loss was related to his military service. The examiner stated that: Service treatment records showed no significant changes in hearing thresholds between enlistment and separation. There was no record of complaint or treatment of the claimed conditions located in the service records. The Institute of Medicine (IOM) (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. Based on the objective evidence available, there is no evidence on which to conclude that the Veteran’s current hearing loss was caused by or the result of his service. The above-mentioned scientific evidence does not support the Veteran’s statement of hearing loss beginning right after he left the military and being the problem manifesting later as a result of military noise exposure. The degree and configuration of current hearing loss being consistent with age-related effects and the Veteran’s previously reported civilian occupations cannot be excluded as possible etiologies of hearing loss and tinnitus. The Board finds that service connection is not warranted for the Veteran’s hearing loss. Service treatment records are silent for any complaints, treatment, or diagnosis of any hearing loss in service and his hearing was normal upon separation. Both VA examiners stated that the Veteran’s hearing, being normal upon separation and without any significant threshold shifts, was not related to his military service. Additionally, both examiners provided alternate caused for the Veteran’s hearing loss, including post-service civilian occupations and age. Finally, the medical evidence, as described by the September 2019 VA examiner, does not support that hearing loss will develop long after noise exposure. The Board has considered the Veteran’s statements, to include his assertions that his hearing loss is related to noise exposure while serving as a tank commander. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., difficulty hearing; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. As the most probative evidence indicates the Veteran’s hearing loss is not the result of military service, to include military noise exposure, service connection is denied. 2. Tinnitus The Veteran contends that he has suffered from tinnitus since service due to his military occupation as a tank commander. Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). Tinnitus is the type of disability that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In this case, the Veteran reports that he did not suffer from tinnitus prior to service and began to experience tinnitus during service after live fire exercises and during his time as a tank commander. See October 2012 statement. The Veteran underwent a VA examination in April 2013. The examiner opined that the Veteran’s tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. An examiner in September 2019 opined that the tinnitus was less likely than not related to military noise exposure, although the rationale for this opinion was focused on hearing loss rather than tinnitus. The Veteran’s military occupation was of a tank commander and armor crewman, and as such, exposure to loud noise is found. A lay person is competent to state whether he has, or has had, tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Despite the negative medical opinion, the Veteran has reported that he first experienced tinnitus in service. The Board has no reason to doubt the Veteran’s reports of experiencing tinnitus during service and presently and finds these statements credible. As tinnitus, a chronic disease, was present during service and is present currently, and is not clearly attributable to an intercurrent cause, service connection is granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). REASONS FOR REMAND 1. Disability rating for a left foot ingrown great toenail While this disability is classified as an ingrown toenail, the June 2013 VA rating decision awarding service connection indicates the condition includes a fungal infection of the skin. The Veteran underwent a VA skin examination in October 2019. However, the examiner did not fully explain the extent of the service-connected disability, to include the percentage of the body affected by the recurrent foot fungus. As such, a new examination is necessary to evaluate the service-connected disability. 2. Service connection for diabetes mellitus, GERD, prostate cancer, and hypertension The Veteran contends that he was exposed to Agent Orange while stationed at Fort Knox and that this exposure caused his claimed disabilities. See June 2017 notice of disagreement; October 2018 statement. In a September 2019 letter, the Armed Forces Pest Management Board verified that Agent Orange was never used or tested at, disposed of, transported through, or stored on Fort Knox. The 2019 Department of Defense (DoD) List of Locations Where Tactical Herbicides and Their Chemical Components Were Tested, Used or Stored Outside of Vietnam similarly does not list Fort Knox. Notably, the presumption of service connection related to herbicide agents makes a distinction between herbicides and herbicide agents, with the latter being defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). The Veteran submitted a Board decision for a different Veteran that indicates that evidence in that case reflected the use of other herbicides, pesticides, and insecticides at Fort Knox, although at a different time period than the Veteran’s service. While prior Board decisions are not binding on current decisions, the Board finds that this decision raises the possibility that the Veteran was exposed to other herbicides, pesticides, and insecticides that could be the cause of his claimed conditions. As such, remand is necessary to determine if the Veteran was exposed to herbicides, pesticides, or insecticides while he served at Fort Knox. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA skin examination to determine the current symptoms, level of severity, and functional impairment associated with his left foot ingrown toenail and foot fungus, to include the percentage of the body affected by the disability. The claims file should be reviewed by the examiner. 2. Attempt to verify the Veteran’s asserted in-service exposure to herbicides, pesticides, and insecticides at Fort Knox. It is noted that development has been done regarding the presence of Agent Orange and tactical herbicides at Fort Knox. This instruction deals with other herbicides, pesticides, and insecticides. Verification attempts should be clearly documented in the claims file for the Board’s review should the any of the claims be denied. 3. If herbicide, pesticide, or insecticide exposure is found, an opinion should be obtained regarding whether it is at least as likely as not (50 percent probability or greater) the current diabetes, GERD, prostate cancer, or hypertension onset during service or is otherwise related to an in-service injury, event, or disease, to include any exposures at Fort Knox. (Continued on the next page.) A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, Attorney Advisor 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.