Citation Nr: 21061332 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 19-12 216 DATE: October 1, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for vascular dementia, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for peripheral artery disease, to include as due to herbicide agent exposure, is remanded. FINDING OF FACT The probative evidence supports a finding that the Veteran's tinnitus onset during military service. CONCLUSION OF LAW The criteria for establishing service connection for tinnitus have been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from in the U.S. Navy from July 1969 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing with the undersigned Veterans Law Judge in July 2021. A transcript of the hearing is of record. Service Connection for Tinnitus 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 organic diseases of the nervous system like 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). As an initial matter, the Board finds exposure to significant noise during service. The Veteran reported during his hearing before the undersigned that he first noticed ringing in his ears while serving on the flight line of the USS Enterprise as an aircraft mechanic. His service personnel records do verify his military occupational specialty as an Aviation Machinist's Mate. Therefore, his account of noise exposure during service is credible and entirely consistent with the circumstances of his service. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(d). Further, tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). The presence of tinnitus is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, the remaining question before the Board is whether the Veteran's tinnitus is related to his in-service noise exposure. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus is related to his in-service noise exposure. Of note, tinnitus is a chronic disease that the Board finds was present in service, is present currently, and is not clearly attributable to an intercurrent cause according to the medical record. 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). The Veteran reported during his Board hearing that his post-service occupation, while in the airline industry, was only administrative. The Board has no reason to doubt the Veteran's reports of experiencing tinnitus since service and presently and finds his statements credible. The Board acknowledges that a VA examiner in March 2018 opined that, "in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist." Here, however, the Board has conceded in-service acoustic trauma. Thus, the Board affords the examiner's opinion minimal probative value. As such, given the Veteran's in-service noise exposure and reports that he first experienced tinnitus in service, the Board finds the probative, competent evidence demonstrates that his current tinnitus at least as likely as not had its onset during active duty. Service connection for tinnitus is granted. REASONS FOR REMAND While the Board regrets further delay, the Veteran's remaining claims for entitlement to service connection for vascular dementia, hypertension, and peripheral artery disease must be remanded for additional development. The Veteran has asserted, including during his hearing before the undersigned, that his dementia, hypertension, and peripheral artery disease disabilities are, in part, related to herbicide agent exposure while serving aboard the USS Enterprise during the Vietnam era. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). In addition to the four issues presently on appeal, the Veteran's original claim in February 2015 also included claims for service connection for diabetes mellitus, type II, and ischemic heart disease, which were also denied in the rating decision on appeal and included in the Veteran's July 2015 Notice of Disagreement. The subsequent Statement of the Case issued in March 2019, however, included only the four issues presently on appeal, as the RO deferred the Veteran's diabetes and ischemic heart disease claims for additional development, including a determination as to whether the Veteran's service aboard the USS Enterprise took him within the territorial waters of the Republic of Vietnam for herbicide agent exposure purposes. Review of the record indicates that this development is still ongoing. As the Veteran asserts that his vascular dementia, hypertension, and peripheral artery disease disabilities are related to purported herbicide agent exposure, these claims are "inextricably intertwined" with the claims still being developed at the RO. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991), (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). It follows that, as any Board action on the issue of entitlement to service connection for vascular dementia, hypertension, and peripheral artery disease would, at this juncture, be premature, the issues must be deferred. The Board also notes that VA examinations have not been afforded to the Veteran regarding these issues. While vascular dementia, hypertension, and peripheral artery disease are not any of the enumerated diseases subject to the presumptive service connection provisions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e), service connection may still be warranted on a direct basis. After the RO completes its development as to whether the Veteran was exposed to herbicide agents in service, appropriate VA examinations should be afforded, and etiologic opinions provided. As the Veteran's ischemic heart disease disability that is currently undergoing development at the RO has to potential to be related to the cardiovascular disabilities being remanded herein, the examiner's opinion should also address service connection on a secondary basis. See 38 C.F.R. § 3.310. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his remaining claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Complete all development necessary to confirm the Veteran's exposure to herbicide agents, to include whether the USS Enterprise was within the territorial waters of the Republic of Vietnam during the dates the Veteran served aboard and associate a formal finding with the record. Then, adjudicate the Veteran's service connection claims for diabetes mellitus and ischemic heart disease. 3. After the above development is completed, schedule the Veteran for appropriate VA examinations to determine whether it is at least as likely as not (50 percent probability or greater) that any current vascular dementia, hypertension, and peripheral artery disease disabilities onset during service or are otherwise related to an in-service injury, event, or disease, to include herbicide agent exposure if verified. The examiner should also address whether any current vascular dementia, hypertension, or peripheral artery disease disabilities were at least as likely as not (a) caused, or (b) aggravated (i.e., worsened beyond its natural progression) by the Veteran's ischemic heart disease (if service connected). The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. The Board acknowledges that these disabilities are not subject to the presumptive service connection provisions of 38 C.F.R. § 3.309(e); however, this does not preclude an award of service connection on a direct basis. Therefore, any opinion that simply states that a disease or disorder is not one of the enumerated diseases subject to presumptive service connection will not suffice. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.