Citation Nr: 21065163 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-44 474 DATE: October 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is remanded. FINDING OF FACT Hearing loss is etiologically related to acoustic trauma sustained in active service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from May 1970 to May 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a hearing before a Decision Review Officer (DRO). In November 2020, the Veteran also testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A conference report of the DRO hearing and the transcript of the Board hearing have been associated with the Veteran's electronic claims file. SERVICE CONNECTION Generally, to establish service connection, a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for bilateral hearing loss is granted. In this case, the Veteran seeks entitlement to service connection for bilateral hearing loss. He asserts that his bilateral hearing loss was caused by in-service noise exposure. At the outset, the Board notes that the Veteran has already been service connected for tinnitus based on in-service noise exposure. As such, in-service acoustic trauma is conceded. Hearing loss is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). First, on VA examination in May 2017, the Veteran was diagnosed with bilateral hearing loss. Therefore, the first element of service connection has been met. Next, as previously indicated, in-service acoustic trauma has been conceded, as the Veteran's service-connected tinnitus is based on in-service noise exposure. As such, because in-service noise exposure has been established, the second element of an in-service incurrence has been met. Next, as to continuity, the Veteran has indicated that he has experienced hearing loss since service. During the November 2020 hearing, the Veteran testified that he first noticed his hearing loss during service in 1971. See November 2020 Hearing Transcript at pg. 6. While there is an absence of complaints of or treatment for hearing loss for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of hearing loss since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Finally, as to nexus, on examination in May 2017, the VA examiner was unable to provide a medical opinion regarding the etiology of the Veteran's bilateral hearing loss without resorting to speculation, as the whisper test conducted during the Veteran's separation examination is not a valid measurement of hearing. While the record does not include a medical opinion that indicates a nexus between the Veteran's hearing loss with service, the Board does not need to reach the weight assignable to any medical opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic disease" of hearing loss (38 C.F.R. § 3.309 (a)) based on a finding of "continuous" symptoms of hearing loss since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in service and continuous symptoms of hearing loss since service; therefore, hearing loss is presumed to have been incurred in service and the appeal is granted. Furthermore, in light of the Veteran's conceded noise exposure in service and the fact that the Veteran has already been awarded service connection for tinnitus based on in-service noise exposure, the Board finds that service connection for bilateral hearing loss is warranted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of hearing loss since service separation, all other service connection theories are rendered moot. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is remanded. The Veteran seeks entitlement to service connection for diabetes mellitus, type II. Specifically, he contends his currently diagnosed disability is due to herbicide exposure while serving in Okinawa, Japan. The Veteran asserts that, during his service in Okinawa, he noticed people spraying herbicides for weed and vegetation control. See November 2020 Hearing Transcript at pg. 7. He further asserts that his job duties required supplying the smaller bases on Okinawa with herbicidal agents. See id. at pg. 8; July 2018 Veteran statement. The law provides a presumption of service connection for certain diseases, to include diabetes mellitus, that are associated with exposure to herbicide agents and that become manifest within a specified time period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean Demilitarized Zone (DMZ) during specified periods of time, even if there is no record of evidence of such disease during the period of service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). Review of the record reveals that the Veteran is diagnosed with mellitus, type II. See July 2017 private treatment record. The Veteran's service personnel records show that he served in Okinawa, Japan, from January 1971 to January 1972. The record does not reflect, and the Veteran does not contend, that he served in the Republic of Vietnam or in one of the units designated by the Department of Defense as having served in or near the Korean DMZ. As such, he is not presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6). Rather, the Veteran contends that he was directly exposed to herbicides while he was stationed in Okinawa, Japan. Indeed, as previously indicated, the Veteran states that he noticed people spraying herbicides for weed and vegetation control, and also, that his job duties required supplying smaller bases in Okinawa with herbicidal agents. Where a veteran is not presumed to have been exposed to herbicides, the VA Adjudication Manual requires that the Veteran's description of exposure in locations other than Vietnam, the Korean DMZ, or Thailand, be provided to the Compensation Service for a review of the Department of Defense (DoD) inventory of herbicide operations to determine whether herbicides were used as alleged. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.6.a. If the Compensation Service's review does not confirm herbicide use as alleged, then a request is to be sent to the Joint Services Records Research Center (JSRRC) for verification of herbicide exposure. Id. There has been a regulatory amendment removing the reference to the JSRRC in 38 C.F.R. § 3.156(c)(2). The Federal Register explained that the JSRRC no longer exists, but that the military records themselves previously researched by the JSRRC remain available for research by VA as an official source of records. The Office of Administrative Review (OAR) has advised that the Veterans Benefits Administration (VBA), which the RO falls under, is using an internal process to research records. If a remand directive references the JSRRC, VBA should still be able to request the records using the internal process; however, it recommended that the Board no longer specifically request for JSRRC to conduct the research. Thus, the Board will not do that. However, and nonetheless, after preliminarily reviewing the evidence of record, it appears the RO requested additional information from the Veteran in May 2017 about his herbicide exposure. He did not respond. In June 2017, the RO consequently issued a memorandum of formal finding, in which it determined that the Veteran's evidence of record did not establish exposure to Agent Orange, and that the Veteran did not serve in Vietnam. It does not appear that the RO requested a record search specific to the Veteran's service in Japan. Furthermore, it is not clear that a record search on exposure to herbicides was performed, or if performed, focused on herbicide use in the locations where the Veteran was stationed. As such, the RO did not develop the case in conformity with the requirements of M21-1. The United States Court of Appeals for Veterans Claims (Court) has held that evidentiary development procedures as provided for in VA's Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development outlined in M21-1). Consequently, remand is required for VA to properly develop and investigate the Veteran's allegations. 38 C.F.R. § 3.159(c)(2). As previously noted, the Veteran's personnel records show that he served in Okinawa from January 1971 to January 1972. Where a period of time identified by the Veteran is longer than the two-month period required by the former JSRRC, the duty to assist requires VA to submit multiple 60-day record searches. See Gagne v. McDonald, 27 Vet. App. 397, 403 (2015). Therefore, in order to properly adjudicate this issue on appeal, the Compensation Service and whatever resource now used in lieu of the JSRRC (that no longer exists) must research whether herbicides, including especially the dioxin in Agent Orange, and/or pesticides were used in Japan during the Veteran's military maneuvers between January 1971 and January 1972. If additional information is required, contact the Veteran and request all needed additional information in advance of making the Compensation Service inquiry. Furthermore, the Board notes that the record reflects that the Veteran has not been afforded a VA examination for his diabetes mellitus. Thus, the Board finds that a remand for a VA examination of this claimed disability is also warranted. On remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Provide the Veteran proper notice with respect to the diabetes claim based on herbicide exposure. In particular, this notice must include the procedural steps to verify such exposure as outlined in the M21-1. Pursuant to the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.6.a, the Veteran should be asked again to provide the approximate dates, location, and nature of his alleged exposure to Agent Orange while stationed in Okinawa, Japan, in an attempt to verify herbicide exposure on a factual basis in locations other than the Republic of Vietnam. 3. Then, request from the Compensation Service a review of the inventory of herbicide and/or pesticide operations maintained by the DoD to determine whether herbicides were used or tested in Japan during the Veteran's service there. If exposure is not verified by the request to the Compensation Service, ask the appropriate authority to verify the presence of herbicides, including Agent Orange and/or pesticides, in Japan for the period between January 1971 and January 1972, when the Veteran reportedly was there. If additional information is required, contact the Veteran and request all needed additional information in advance of making the Compensation Service or other appropriate authority inquiry. 3. Make appropriate requests to the Compensation Service and any other appropriate source (since the JSRRC no longer exists) for verification of the Veteran's reported herbicide agent exposure. This includes, if necessary, submitting multiple requests using different 60-day requests intervals to cover the entire relevant service period. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (holding that VA had failed in fulfilling its duty to assist in not submitting multiple requests to the JSRRC). Again, since the JSRRC no longer exists, however the RO now goes about doing this research must be undertaken. 4. After completing the above development, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diabetes mellitus. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's diabetes mellitus, type II, began during active service, within one year of service separation, or is related to any incident of service, to include herbicide exposure in Okinawa, Japan. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (Continued on next page) 5. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.