Citation Nr: 21004609 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-21 040 DATE: January 27, 2021 ORDER Entitlement to service connection for bilateral tinnitus is granted. Entitlement to service connection for a heart disease is denied. Entitlement to service connection for high blood pressure is denied. Entitlement to service connection for kidney disease is denied. Entitlement to service connection for diabetes mellitus, II is denied. REMANDED Entitlement to service connection for pancreas disease is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his is etiologically related to his military noise exposure. 2. A preponderance of the evidence does not show the Veteran’s heart disease had its onset in or was otherwise etiological related to his military service, to include as a result of any herbicide exposure. 3. A preponderance of the evidence does not show the Veteran’s hypertension had its onset in or was otherwise etiological related to his military service, to include as a result of any herbicide exposure. 4. A preponderance of the evidence does not show the Veteran’s kidney disease had its onset in or was otherwise etiological related to his military service, to include as a result of any herbicide exposure. 5. A preponderance of the evidence does not show the Veteran’s diabetes mellitus had its onset in or was otherwise etiological related to his military service, to include as a result of any herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(a), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a heart disease have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(a), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for high blood pressure have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(a), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for kidney disease have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(a), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for diabetes mellitus, II have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(a), 5103, 5103A, 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 with the U.S. Army from December 1960 to November 1962. He testified at a hearing in September 2020 before the undersigned Veterans Law Judge. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Service connection may also be established for a current disability based on a presumption that certain chronic diseases (to include prostate cancer) manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. In addition, service connection may be presumed if a veteran was exposed to an herbicide agent during active service. The governing law provides that 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). VA regulations also provide that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv). The DoD has identified that certain units, specifically Battalions of the 2nd and 7th Infantry Divisions, were operating in or near the Korean DMZ during the qualifying period. Veterans assigned to one of these units during the qualifying period will be presumed to have been exposed to herbicide agents. If, however, a veteran was not a member of an identified unit, but nevertheless alleges exposure during the qualifying period, VA’s directs that a request should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of location of a Veteran’s unit(s). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.§ 5107(b). 1. Entitlement to service connection for bilateral tinnitus. The Veteran seeks service connection for tinnitus. Per the September 2017 VA examination, the Veteran has a current diagnosis of bilateral tinnitus. The Veteran’s military occupational specialty was radio repairman, which had a moderate probability of noise exposure. The Veteran has alleged that he developed tinnitus from being exposed to noise from loud generators that ran constantly while he was stationed in Korea. The Board concedes that the Veteran was exposed to excessive noise during service, which constitutes an injury. As such, the first two elements of service connection have been met. The remaining question before the Board is whether the Veteran’s current tinnitus is related to his in-service acoustic trauma (nexus). During the September 2020 Board hearing, the Veteran testified that the building in which he worked during service was next to very large and loud generators. He first noticed ringing in his ears during service, but it continued even after separation until the present. While at home, to include sleeping, he kept a radio as background noise to help with the symptoms. The September 2017 VA examiner opined that the Veteran’s tinnitus was less likely than not related to his service. The rationale noted that his service treatment records did not contain complaints, treatment, or diagnosis of tinnitus. Hearing loss found during the exam was not due to or aggravated by his service. The current complaint of tinnitus is NOT a result of or aggravation of military noise exposure since tinnitus is more likely as not found in association with hearing loss, which the veteran did not exhibit on discharge examination. The examiner made note that head injuries or middle ear conditions could cause tinnitus. Review of his service records showed a head injury and a healed tympanic membrane perforation prior to service. Upon careful review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s currently diagnosed bilateral tinnitus is related to his military service. As mentioned previously, the Veteran has established a continuity of symptoms since service through his consistent and competent reporting. The Board has no reason to doubt the Veteran’s credibility. However, there is also a competent negative VA opinion for service connection for the Veteran’s bilateral tinnitus. The Board finds that the positive and negative evidence in this matter is in relative equipoise. The Board will resolve all reasonable doubt in the Veteran’s favor and grant service connection for bilateral tinnitus. 2. Entitlement to service connection for a heart disease. 3. Entitlement to service connection for high blood pressure. 4. Entitlement to service connection for kidney disease. 5. Entitlement to service connection for diabetes mellitus, II. The Veteran was diagnosed post-service with hypertension, diabetes mellitus, coronary arteriosclerosis, and end-stage renal disease. He contends that these disabilities developed as a result of his exposure to herbicides while serving in Korea. For the reasons discussed below, Board finds that service connection for is not warranted for these disabilities. Notably, the Veteran does not assert that any of the above disabilities were diagnosed in service. The Veteran’s service treatment records are negative for treatments or complaints of any related symptomatology or disability, much less diabetes, hypertension or heart, or kidney disease. His separation exam and report of medical history were negative for any related diseases or defects. Post-service VA and private treatment records confirm that the Veteran was diagnosed with diabetes mellitus in 1995, hypertension in approximately 2002, coronary artery disease in approximately 2006, pancreatitis in approximately 2014 and kidney disease in approximately 2015. As such, the earliest diagnosis was still almost 30 years after he separated from service. During the September 2020 hearing, the Veteran testified that he while he was serving in Korea DMZ (demilitarized zone), he witnessed spraying of the area and could smell the spray as they were putting it down. He also described headaches that were possibly due to exposure to the spray, injury during motor vehicle accidents, or an early indication of his hypertension. Although the Veteran’s post-service medical records document his development of diabetes, high blood pressure, and kidney and heart disease, they do not demonstrate that there is any causal relationship between the Veteran’s various conditions and his military service. Because there is no evidence that the Veteran’s diagnoses are related to his service, service connection on a direct basis must be denied. Service connection on a presumptive basis may not be granted as hypertension, diabetes, heart disease, and kidney disease were not shown in service or within one year of discharge therefrom. See 38 C.F.R. §§ 3.307, 3.309. As the Veteran was not diagnosed with any of the above disabilities until many years after service and there was a significant period between his service and evidence of his diagnoses, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). In terms of presumptive service connection based upon his service in Korea, the Board finds that even though the Veteran’s records corroborate his service in Korea, his overall period of service occurred between December 1960 to October 1966. He did not serve in the DMZ of Korea during the period from April 1968 to August 1971. Thus, his service is outside the specific time period for herbicide exposure near the Korean DMZ; and therefore, was not presumptively exposed to herbicides during active service. Lastly, the evidence does not suggest that the Veteran was actually exposed to herbicides while stationed in Korea. His military occupational specialty was as a radio repairman. There is no probative evidence of record that shows he was actually exposed to herbicides while stationed in Korea. During the hearing, the Veteran testified that he served in Korean DMZ from fall of 1961 to fall of 1962 and recalled chemicals being sprayed along the DMZ. He believed the headaches he experienced were a result of exposure to the chemicals being sprayed Unfortunately, the Veteran’s lay testimony about general herbicide exposure is insufficient upon which to find that he was actually exposed to herbicides in service. He has not been shown to have the requisite knowledge of the types and nature of chemicals he may have been exposed to in service. In other words, he is not competent to determine that any chemicals he was exposed to during service were, in fact, herbicide agents. Further, there is no probative evidence showing that his exposures in Korea included exposure to herbicide agents. Thus, although diabetes mellitus and ischemic heart disease are diseases that would warrant a regulatory presumption of service connection as a result of in-service herbicide exposure, this is not applicable as herbicide exposure is not conceded. Therefore, service connection based on evidence of actual exposure to herbicides must also be denied. During the hearing, the Veteran and his representative also contended that his diabetes mellitus and hypertension caused or aggravated his kidney disease due to the medication he was prescribed to treat both conditions. However, because service connection for diabetes mellitus was not awarded, secondary service connection is also not warranted. In sum, there is no competent or credible evidence of record showing that the Veteran’s now-diagnosed diabetes, hypertension, kidney disease, or heart disease were caused or aggravated by an event, injury, or disease in service. The medical evidence during and since service does not show any link between the Veteran’s currently diagnosed disabilities and his military service. The Board notes that under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant’s favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran’s claims, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for pancreatic disease is remanded. The evidence of record does not show the Veteran’s pancreatitis had its onset in service or that he was exposed to herbicide agents, as discussed above. However, during the July 2020 hearing, the Veteran indicated that the medication he took for his chronic headaches during service caused his pancreas condition. The Veteran has never been afforded a VA examination to determine the etiology of his claimed condition. As such, on remand, an exam and opinion should be conducted. The matters are REMANDED for the following action: Obtain an opinion as to the etiology of his current pancreatitis. The examiner is asked to determine whether the Veteran’s pancreatitis was caused or aggravated by the APCs (aspirin, phenacetin and caffeine) he took during service. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, Associate 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.