Citation Nr: 21062535 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 14-20 317 DATE: October 7, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for bilateral lower hernia is denied. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for right foot disorder is remanded. Entitlement to service connection for left foot disorder is remanded. Entitlement to service connection for skeletal arthritis is remanded. Entitlement to service connection for sinus disorder is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. Entitlement to service connection for left carpal tunnel syndrome is remanded. Entitlement to service connection for depression is remanded. Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for asbestosis, claimed as lung disorder, is remanded. FINDINGS OF FACT 1. Diabetes did not manifest in service, within the one year presumptive period or for many years thereafter, and is not otherwise related to service, to include exposure to herbicide agents. 2. Hypertension did not manifest during service, was diagnosed more than one year after service, and is etiologically not related to service. 3. Bilateral lower hernia did not manifest during service and is etiologically not related to service. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, right ear hearing loss for VA purposes. 5. The evidence is in relative equipoise as to whether the Veteran's left ear hearing loss is related to his service. CONCLUSIONS OF LAW 1. Diabetes was not incurred in or aggravated by military service, may not be presumed to have been incurred therein, and may not be presumed to have been so incurred as due to in-service herbicide exposure. 38 U.S.C. §§ 1110, 1112, 1131, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Hypertension did not manifest during service, may not be presumed to have been incurred therein, and is unrelated to service. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for bilateral lower hernia have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 5. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service to include the periods from January 1966 to March 1966 and from March 1966 to March 1969. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for diabetes mellitus, hypertension, and organic diseases of the nervous system such as sensorineural hearing loss if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Thus, hypertension and diabetes mellitus are included among the chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Issues 1-3: Entitlement to service connection for diabetes mellitus, hypertension, and bilateral lower hernia. Veterans who 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 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)(iii). If a veteran was exposed to a herbicide agent, including Agent Orange, during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The current list of diseases subject to presumptive service connection includes diabetes mellitus, type 2. 38 C.F.R. §§ 3.307 (a)(6)(ii); 3.309(e). The Federal Circuit issued a decision expanding the eligibility for presumptive service connection to all veterans who had served on ships in the territorial seas, within 12 nautical miles, of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 n.1. A diagnosis of hypertension "must be confirmed by readings two or more times on at least three different days." Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). As for diabetes mellitus, the Veteran testified that he was diagnosed with diabetes mellitus 4 to 5 years ago. See May 2021 Board hearing transcript. The Veteran does not allege, nor do his service records demonstrate, that he served in the Republic of Vietnam (Vietnam) during the Vietnam War or that he was on a ship within 12 nautical miles of the shores of Vietnam. Instead, the Veteran contends that he was exposed to Agent Orange by helping unload brass containers off ships coming from overseas. Id. As for hypertension, the Veteran contends that it was maybe related to the stress he had in service. Id. As for the bilateral lower hernia the Veteran testified that it is due to the heavy lifting during service including lifting over 50 pounds during boot camp. Service treatment records shows that on the December 1965 enlistment examination the Veteran's blood pressure was 124/80 and on the separation examination in March 1969 his blood pressure 126/76. Service treatment records do not show complaints, findings or treatment for diabetes mellitus, hypertension, and bilateral lower hernia. After service, VA treatment records in March 2019 show a new onset of diabetes. In April 2019 the records show an assessment of diabetes type 2. Private medical records received in January 2020 show a history of bilateral inguinal hernia repair in 2014. In January 2012 the records show hypertension and a surgical history of hernia repair. The Board has carefully considered the Veteran's contentions to the effect that he was exposed to Agent Orange during service; however, the weight of the evidence of record, to include service personnel records, does not establish exposure to herbicides during service. Thus, the Veteran's speculations or conjecture regarding his claimed exposure to herbicides during service are not substantiated by the evidence of record. As a lay person, the Veteran is competent to report symptoms pertaining to his diabetes mellitus, hypertension, and bilateral lower hernia. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of these disorders fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). These are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorders. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent, the matter of whether it is credible is not reached. The Board acknowledges that the Veteran has not been provided VA examinations to determine the nature and etiology of his diabetes mellitus, hypertension, and bilateral lower hernia. The competent and credible evidence does not establish an in-service incurrence, or continuity of symptoms since service in the case for the disabilities claimed herein. Therefore, it is insufficient to trigger VA's duty to assist by providing medical opinions regarding service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, VA examinations or opinions are not necessary as to these matters on appeal. The Board finds that the preponderance of the evidence is against the claims for service connection for diabetes mellitus, hypertension, and bilateral lower hernia. Accordingly, the benefit-of-the-doubt rule does not apply, and the claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Issues 4-5: Entitlement to service connection for right ear hearing loss and left ear hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that he has had hearing loss since service where he had acoustic trauma on the rifle range during training without hearing protection. See May 2021 Board hearing transcript. As for right ear hearing loss, the Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss and has not had one at any time during the pendency of the claim. 38 C.F.R. § 3.303. On VA audiological examination in April 2015, puretone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 15, 20, 25, and 35. The speech recognition score, using the Maryland CNC Test, was 96 percent in the right ear. Thus, the Veteran did not meet the criteria for hearing loss. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran believes that he has a current diagnosis of right ear hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it is based on audiometric findings and requires specialized medical education/knowledge to interpret diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent evidence. As for left ear hearing loss, on VA audiological examination in April 2015, the Veteran had left ear hearing loss as he had 40 decibels at 4000 Hertz with a diagnosis of sensorineural hearing loss. The Board recognizes that the examiner opined that the Veteran's left ear hearing loss was less likely as not related to service as he reported an onset of hearing loss 5 years earlier and his hearing loss frequency configuration is inconsistent with acoustic trauma. However, as discussed above, the Veteran during his Board hearing in May 2021 clarified that he had symptoms of hearing loss since service. The Veteran as a lay person is competent to describe symptoms of hearing loss. Layno v. Brown, 6 Vet. App. 465, 470 (1994). His contentions are credible and consistent with the circumstances of his service, to include acoustic trauma, as his DD 214 Form for the period of service from January 1966 to March 1966 shows that he went through training as a basic Marine at the Marine Corps Recruit Depot (MCRD). Considering the claim for service connection for left ear hearing loss, in light of the record and the governing legal authority, the Board resolves all reasonable doubt in favor of the Veteran and finds that the evidence is in relative equipoise on the question of a nexus based on continuity of symptomatology. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Issues 6-17: Entitlement to service connection for right foot disorder; left foot disorder; skeletal arthritis; sinus disorder; COPD; headaches; right carpal tunnel syndrome; left carpal tunnel syndrome; psychiatric disorder to include depression; bilateral eye disorder; erectile dysfunction; and, asbestosis, claimed as lung disorder. VA treatment records in December 2018 show diagnoses of degenerative joint disease and osteoarthritis. Private medical records received in January 2020 show sinusitis. During the May 2021 Board hearing the Veteran indicated that he was hospitalized during service for approximately one month for joint pain and problems with ankles, shoulders, and hands. The Veteran also stated that medication he was given at the hospital helped with his headaches and sinuses. He noted that he had headaches during his infantry training. Hospital records at the National Personnel Records Center (NPRC) are maintained separately from the service treatment records. Thus an attempt needs to be made to obtain any outstanding in-service hospital records during the period of the Veteran's active service from January 1966 to March 1969. During the May 2021 Board hearing the Veteran testified that he started having problems with his eyes during service on the rifle range at Camp Pendleton. He stated that after service he started wearing cheaters and was diagnosed with dry eye syndrome. He noted that he was currently being treated for his eye problems at the VA Beaumont outpatient clinic. He also stated that he was diagnosed with depression at the Beaumont clinic. VA treatment records in August 2017 show peripheral retinal scarring of the right eye and in December 2018 show pseudophakia. As the Veteran's most recent VA treatment records were received in March 2020 an attempt needs to be made to obtain any outstanding pertinent VA treatment records. The Veteran during the May 2021 Board hearing also testified that he had stress fractures and heel contusions and has been diagnosed with plantar fascitis in his feet. Service treatment records show that in February 1966 the Veteran was treated for a fracture of the right heel bone (OS calcis) incurred in the line of duty due to continuous marching during recruit training. VA x-rays in August 2017 of the left foot show previous ORIF bimalleolar ankle fractures and osteopenia in the right foot. In the June 2019 remand the Board found the February 2013 VA ankle examination was inadequate and instructed that the Veteran be afforded a new VA examination. On VA foot examination in October 2019, the diagnoses were flat feet, osteopenia in both feet, and right heel spur. The examiner noted that the Veteran reported developing stress fractures and heels contusion in service due to wearing oversized boots. In an accompanying opinion the examiner opined that it was less likely than not that flat feet were incurred in or caused by service, to include prolonged marches during boot camp. The examiner stated that flat feet are a recent onset and not related to service. As for osteopenia, it is generally a systemic condition and there is no indication in the records of a nexus between osteopenia of the feet and service. However, the examiner did not address the etiology of the right heel spur nor did the examiner consider the Veteran's treatment during service for fracture of the right heel bone. Thus, on remand the Veteran should be afforded a new VA examination that adequately addresses his right foot disorder and left foot disorder. The Veteran during the May 2021 Board hearing stated that his carpal tunnel syndrome began during service and he developed a trigger thumb and finger. It was pointed out that the Veteran did a lot of typing during service. Notably, the Veteran's DD 214 From for the period from March 1966 to March 1969 shows that his military occupational specialty was account manager. As for COPD, the Veteran stated that he started having breathing problems during service while running at the MCRD in San Diego. In June 2011 the Veteran contended that he was exposed to asbestos during service at the MCRD and Camp Pendleton. Private medical records in May 2003 show chest findings consistent with asbestosis given the appropriate exposure history and latency period. Medical records also show a diagnosis of COPD. See, e.g., private medicated records dated in January 2012 and February 2019. A CT scan in November 2019 shows calcified granuloma in the right lung base. Thus, on remand the appropriate development needs to be undertaken to develop the claims for a lung disorder to include COPD as well as asbestosis. The Veteran also should be afforded a VA examination to determine the nature and etiology of his claimed right carpal tunnel syndrome and left carpal tunnel syndrome. In a June 2021 statement the Veteran stated that during service he was constantly berated because he was an African-American college graduate and was blamed for things that he did not do. He stated his feet were injured and he had stress fractures because his boots were the wrong size. The Veteran explained that his drill sergeant did not allow him to seek treatment until the captain ordered the drill sergeant to allow the Veteran to go and he ended up in the hospital for four weeks. The Veteran also reported that two drunk soldiers rammed into his taxi while he returning to the base during service and he was advised not to file a lawsuit. VA treatment records in July 2017 show a history of posttraumatic stress disorder (PTSD). Thus under the circumstances of this case, a VA examination is warranted to determine the nature and etiology of the Veteran's claimed psychiatric disorder. On remand, the Veteran also should be asked to provide information regarding any claimed in-service stressors. During the May 2021 Board hearing the Veteran through his representative stated that he had erectile dysfunction due to medication prescribed for his headaches. However, because the development and outcome of the pending headaches claim may impact the development of the erectile dysfunction claim, they are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, adjudication of the erectile dysfunction claim must be deferred. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain all outstanding pertinent VA treatment records, to include treatment records from the VA medical facility in Beaumont, TX from March 2020 to the present. All attempts associated therewith should be memorialized in the Veteran's claims file. 2. Contact the NPRC and obtain any outstanding in-patient hospital records during the Veteran's period of active service from January 1966 to March 1969. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Contact the Veteran and request that he provide information regarding the stressors on which he bases his claim for PTSD, to include descriptions, along with dates, locations, and units he was with. 4. Afterwards, and after reviewing the record and a copy of this remand, undertake the necessary development to attempt to corroborate the stressors. 5. Undertake the appropriate development to verify the Veteran's statements of asbestos exposure including during service at the MCRD and Camp Pendleton. If unable to verify the Veteran's statements, prepare a formal memorandum to this effect, which documents the requests made, actions taken, and records and responses received. The Veteran and his representative should be notified of any negative results of these efforts and given the opportunity to respond. 6. Schedule the Veteran for a VA respiratory examination. After reviewing the claims folder, conducting all necessary tests, and examining the Veteran, the examiner is asked to do the following: Provide diagnoses of all respiratory disorders and for each respiratory disorder diagnosed, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that it had onset in, or is otherwise related to, active military service, to include the Veteran's claimed asbestos exposure. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right carpal tunnel syndrome and left carpal tunnel syndrome. After reviewing the claims folder, conducting all necessary tests, and examining the Veteran, the examiner is asked to do the following: Provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right carpal tunnel syndrome and left carpal tunnel syndrome had its onset in, or is otherwise related to, active military service. In rendering the opinion the examiner is asked to consider that the Veteran during the May 2021 Board hearing stated that his carpal tunnel syndrome began during service and he developed a trigger thumb and finger. He pointed out that he did a lot of typing during service and his DD 214 From for the period from March 1966 to March 1969 shows that his military occupational specialty was account manager. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 8. Schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of his right foot disorder, left foot disorder, and claimed skeletal arthritis. After reviewing the claims folder, conducting all necessary tests, and examining the Veteran, the examiner is asked to do the following: a.) Identify and diagnose all disorders of the right foot, left foot, and identify all joints affected by the Veteran's claimed skeletal arthritis. b.) For each disorder diagnosed of the right foot and left foot, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that it had onset in, or is otherwise related to, active military service. In rendering the opinion the examiner is asked to consider that service treatment records show that in February 1966 the Veteran was treated for a fracture of the right heel bone incurred in the line of duty due to continuous marching during recruit training. c.) For each joint affected by the skeletal arthritis the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that it had onset in, or is otherwise related to, active military service. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 9. Schedule the Veteran for a VA psychiatric examination. After reviewing the claims folder, conducting all necessary tests, and examining the Veteran the examiner is asked to do the following: a.) Identify/diagnose all current psychiatric disorders per the DSM V criteria, to include whether the Veteran meets the criteria for PTSD. b.) If the Veteran is diagnosed with PTSD per the DSM V criteria, the examiner must provide an opinion as to whether the PTSD symptoms are related to a verified inservice stressor. c.) For any psychiatric disorder other than PTSD the examiner must opine whether it is at least as likely as not (50 percent or better probability) that it is related to an in-service injury, event, or disease. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 10. After the above development has been completed, and all outstanding pertinent medical records have been obtained, if deemed warranted schedule the Veteran for the appropriate VA examinations to determine the nature and etiology of his claimed sinus disorder as directly related to service, headache disorder as directly related to service and secondary to the sinus disorder, bilateral eye disorder as directly related to service, and erectile dysfunction secondary to medications prescribed for headaches. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.