Citation Nr: 21004760 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-28 447A DATE: January 28, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for diabetes mellitus type II (herein diabetes) is remanded. Entitlement to service connection for coronary artery disease (herein CAD) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5017(b); 38 C.F.R. §§ 3.102; 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1962 to May 1965. He testified before the undersigned Veterans Law Judge at a September 2019 Board hearing. The Board notes that at the September 2019 Board hearing, the issues on appeal with respect to diabetes and CAD were characterized as whether new and material evidence had been submitted to reopen these claims. As will be addressed in detail below, while this was the way that the agency of original jurisdiction (AOJ) characterized these claims in the relevant May 2017 Statement of the Case (SOC), a prior April 2011 rating decision was not final and thus new and material evidence was not required with respect to these claims. As such, the Board has characterized these claims on appeal as noted above, specifically as entitlement to service connection, without the issue of whether new and material evidence had been submitted. Service Connection – Tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Tinnitus is defined as “a noise in the ears, such as ringing.” See Dorland’s Illustrated Medical Dictionary 1930 (32nd ed. 2012). The Veteran is competent to report as to the onset and presence of tinnitus “because ringing in the ears is capable of lay observation.” See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran variously reported in-service noise exposure. See June 2017 VA Audiological Assessment (“[Veteran] reported military noise exposure to rifles, handguns, machine guns, and aircraft engines”); September 2019 Board Hearing Transcript, Page 2 (referencing airplanes, jets, bombs, mortars and rifles). The Veteran’s DD 214 listed his specialty title as Light Vehicle Driver and noted that he was awarded the Parachute Badge and a DD 215 noted that he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar M1 and the Sharpshooter Marksmanship Qualification Badge with Rife M14 and Carbine Bars. The evidence of record addressing the onset of the Veteran’s tinnitus is inconsistent. In this regard, the Veteran’s service treatment records (STRs) did not include report of or treatment for tinnitus. An April 1965 separation examination report noted no relevant defects and noted that the Veteran was qualified for “ETS.” On an accompanying Report of Medical History form, the Veteran denied ever having or having now ear, nose, or throat trouble and he denied having any illness or injury other than those already noted on the form. Post service medical records included an initial February 2010 VA primary care note. This note referenced that the Veteran had “multiple ongoing medical problems,” but did not reference tinnitus and the note also included a Review of Systems section that stated “Ears: no pain or ringing, no trouble hearing.” The Veteran was also afforded a VA examination in January 2012 and a Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) was completed. The DBQ noted that the Veteran reported recurrent tinnitus and stated regarding the date and circumstances of the onset of tinnitus that such “began 20 years ago. It occurred spontaneously with crackling and popping sounds.” On the other hand, the Veteran testified under oath before the undersigned Veterans Law Judge at a September 2019 Board hearing. The Veteran specifically testified that during his active service he had ringing in his ear. See September 2019 Board Hearing Transcript, Page 5. He also stated that “[i]n my last nine months, I was really right up with the weapons and everything…when we were in field problems and everything. We were always toting them and using them and it would leave you ringing like…all the time.” He further testified that when he came out of the service in 1965, he was still having ringing in the ears. See September 2019 Board Hearing Transcript, Page 6. He additionally stated that “[i]t’s always been there. It’s like I didn’t know what it was. It come on, it ring and do the clicking and it would stay for a while and then it just ease off and it would go away. And then it come back…later, two or three weeks later or a week later.” He additionally specifically reported having had tinnitus continuously from 1965 to the present. See September 2019 Board Hearing Transcript, Page 6. 38 U.S.C. § 5107(b) states that “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, [VA] shall give the benefit of the doubt to the claimant.” 38 C.F.R. § 3.102 states that “[w]hen…a reasonable doubt arises regarding service origin…such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.” Upon review, the Board finds that there is at least an approximate balance of positive and negative evidence as to the issue of whether the Veteran’s tinnitus began during his active service. As such, and resolving reasonable doubt in the Veteran’s favor, the Board finds that his tinnitus began during his active service. The Board therefore concludes that the criteria for entitlement to service connection for tinnitus have been met and, in this regard, the Veteran’s claim is accordingly granted. 38 U.S.C. §§ 1110, 1131, 5017(b); 38 C.F.R. §§ 3.102; 3.303. REASONS FOR REMAND 1. Service Connection – Diabetes 2. Service Connection – CAD Procedural History The Veteran filed a claim in April 2010 (on a VA Form 21-526) for entitlement to service connection for diabetes and a heart disability. He reported that he was exposed to Agent Orange or other herbicides, that his disabilities were diabetes and a heart disability and that he was exposed in “Thailand by Laos border.” He also reported being in Okinawa and stated “washing trucks com[]ing into motor pool from Viet Na[]m area after being exposed to Agent Orange.” In an accompanying statement, the Veteran elaborated on the reported exposure in Okinawa (“we had to wash incoming ve[hicles] from the [southeast] Pacific Theater of Operation. Exposure to the dirt that the ve[hicles] carried was contaminated with Agent Orange”) and in Thailand (“the ground we slept on smelt like kerosene. The dirt was sort of gooey and dark. At the time I had no idea of what this stuff was”). The Veteran also provided a June 2010 statement with similar information. The AOJ attempted to verify the Veteran’s reported herbicide exposure. A June 2010 VA Form 3101 Request for Information contained a response of “no records of exposure to herbicides.” A March 2011 DPRIS (Defense Personnel Records Information Retrieval System) response stated, in part, that a unit history “does not document that the [unit] washed vehicles that were contaminated with Agent Orange or that they were near the Laos border” and that “we reviewed the Department of Defense (DOD) listing of herbicide spray areas and test sites outside the Republic of Vietnam; Okinawa is not a listed location.” It was concluded that “[t]herefore, we are unable to verify that [the Veteran] was exposed to Agent Orange or other tactical herbicides.” An April 2011 rating decision denied entitlement to service connection for diabetes and CAD. The rating decision referenced that VA medical records showed a diagnosis of diabetes and CAD. Certain diseases, to include diabetes and CAD, warrant presumptive service connection for veterans who were exposed to designated herbicide agents (e.g., Agent Orange) during their active service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). As the AOJ found that the Veteran had diabetes and CAD, the only remaining element necessary for entitlement to service connection to be warranted was in-service exposure to herbicide agents. As to this point, the AOJ stated in the April 2011 rating decision that “nor was there evidence of exposure to herbicides during military service. Therefore, you are not presumed exposed to herbicides during your service.” The AOJ also stated that service connection for diabetes and CAD was “further denied because there was no evidence of record of exposure to herbicides during military service.” Following this rating decision, the Veteran submitted an August 2011 VA Form 21-526b (Veteran’s Supplemental Claim), where he noted that he was filing a claim for reopening of previously denied disability and he stated “Agent Orange exposure, heart condition, diabetic type II.” In December 2011, the Veteran submitted a VA Form 21-4138 (Statement in Support of Claim) that listed various additional evidence that was submitted, to include a statement from the Veteran and “evidence for Agent Orange in Okinawa.” The referenced statement appeared to be a separate typed statement from the Veteran that was dated in December 2011. As relevant, the Veteran reported being in Okinawa from October 1962 to April 1964. He described the Northern Training Area (NTA) and stated that “[s]everal Army training tests were done there while I was on the Island” and that “[w]e were in the N.T.A. numerous times.” The “evidence for Agent Orange in Okinawa” referenced on the December 2011 VA Form 21-4138 appeared to include a copy of an October 2011 Japan Times article. This article referenced the NTA as being “in the Yambaru jungles” and stated that “[a]ccording to one high-ranking U.S. official, the Yambaru jungle also made an ideal testing ground for America’s defoliation program…The official…claimed the chemicals had been used in the NTA between 1960 and 1962.” In June 2012, a rating decision was issued and the substance of the rating decision was conveyed in a notification letter. The information provided in the letter was brief and mostly appears to be generic form language. Regarding the diabetes and CAD claims, it was noted that “[t]he evidence does not support a change in our prior decision. Therefore, we are confirming the previous denial of this claim.” Subsequently, the Veteran submitted a May 2013 notice of disagreement (NOD). The AOJ issued a May 2017 SOC. The issues noted on appeal were “[w]hether new and material evidence has been received to reopen claim of service connection for” diabetes and CAD. For both the diabetes and CAD claims, it was stated that “[e]vidence reviewed from the VA Medical Center is not new and material as it does not relate to an unestablished fact necessary to substantiate the claim.” It was also stated, for both the diabetes and CAD claims, that such were “not reopened and the issue remains denied.” Analysis The June 2012 rating decision was not entirely clear as to whether such adjudicated the Veteran’s claims on the merits. The May 2017 SOC, however, made clear that the AOJ viewed the diabetes and CAD claims on appeal as claims to reopen previously denied claims. In this regard, an unappealed AOJ denial is generally final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Under the legacy appeal system, if new and material evidence is presented or secured with respect to a claim that has been disallowed, however, VA must reopen the claim and review the former disposition. See 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to VA and material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). When determining whether evidence is new and material, “the credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). 38 C.F.R. § 3.156(b), however, provides that “[n]ew and material evidence received prior to the expiration of the appeal period…will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” In this case, the Board finds that new and material evidence was received within the one year appeal period following the April 2011 rating decision. See 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 19.52(a) (both defining the one year appeal period). As noted, that rating decision denied the diabetes and CAD claims based, in part, on a lack of in-service exposure to herbicide agents. As outlined, the Veteran submitted new evidence in December 2011 that included his statement that he was in Okinawa from October 1962 to April 1964 and that he was variously in the NTA in Okinawa, as well as the copy of the October 2011 Japan Times article that stated that “one high-ranking U.S. official…claimed the chemicals had been used in the NTA between 1960 and 1962.” Presuming its credibility, this new evidence was also material in that it related to an unestablished fact necessary to substantiate the claims, specifically the in-service event of exposure to herbicide agents. It also raised a reasonable possibility of substantiating the claims, in that if exposure to herbicide agents was verified, entitlement to service connection on a presumptive basis would potentially be warranted for the claims on appeal. As new and material evidence was therefore received within the appeal period of the April 2011 rating decision, pursuant to 38 C.F.R. § 3.156(b) that rating decision was not final and the claims on appeal can be considered pending from the April 2010 claim. In review, the AOJ treated the diabetes and CAD claims on appeal as claims to reopen previously denied claims and, as documented in the May 2017 SOC, did not address the merits of the Veteran’s claims. For the reasons outlined, the Board has found that the prior April 2011 rating decision was not final. As such, the AOJ should have addressed the merits of the Veteran’s claims, to include in the May 2017 SOC. The situation in this case is similar to when the Board reopens a previously denied claim that the AOJ did not. The United States Court of Appeals for Veterans Claims has stated that in such circumstances “the matter generally must be returned to the RO for consideration of the merits. This is because the [AOJ] should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by” 38 U.S.C. § 7104. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010); see also 38 U.S.C. § 7104 (“All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary”). In light of the reasoning outlined in Hickson, and to ensure fair process of the Veteran’s claims, the Board finds that remand is required for the AOJ to consider the diabetes and CAD claims on the merits. See Smith v. Wilkie, 32 Vet. App. 332, 337 (2020) (“The Board is obligated to ensure that it provides to appellants fair process in the adjudication of their claims” and “even in situations where no particular procedural process is required by statute or regulation, the principle of fair process may nonetheless require additional process if it is implicitly required when ‘viewed against [the] underlying concepts of procedural regularity and basic fair play’ of the VA benefits adjudicatory system”). The matters are REMANDED for the following action: Readjudicate on the merits the claims for entitlement to service connection for diabetes and CAD. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.