Citation Nr: 21066269 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-67 599 DATE: October 29, 2021 ORDER Entitlement to service connection for a bilateral foot and toenail fungus disability (foot disability) has been withdrawn. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II (DM) is remanded. Entitlement to service connection for neuropathy of the right upper extremity, to include as secondary to DM, is remanded. Entitlement to service connection for neuropathy of the left upper extremity, to include as secondary to DM, is remanded. Entitlement to service connection for neuropathy of the right lower extremity, to include as secondary to DM, is remanded. Entitlement to service connection for neuropathy of the left lower extremity, to include as secondary to DM, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to DM, is remanded. Entitlement to service connection for retinopathy, to include as secondary to DM, is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision on the issue on appeal, the Veteran requested that his appeal of the issues of entitlement to service connection for a food disability be withdrawn. 2. Resolving all reasonable doubt in favor of the Veteran, the probative evidence of record shows that the Veteran has continuously had symptoms of tinnitus since service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for a bilaterally foot disability by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1975 to November 1978, to include service overseas. Service Connection 1. Entitlement to service connection for a bilateral foot and toenail fungus disability (foot disability) A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During his July 2021 Board hearing before the undersigned Veteran's Law Judge, the Veteran's representative indicated that the Veteran wished to withdraw his appeal regarding the issue of service connection for a foot disability. The Veteran confirmed his desire to withdraw the appeal as to this issue. Because the Veteran has clearly indicated he wished to withdraw the issues, there remain no allegations of errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Accordingly, the Board does not have jurisdiction to review the issue and it is therefore dismissed. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is the result of noise exposure during active service. Specifically, he claims that he was exposed to noise from being around heavy machinery, to include heavy vehicles and trucks such as 18-wheelers, as part of his duty during service as a mechanic. In addition, the Veteran also noted that he was certified on several rifles to include the M-16 and 45. He claims that that he began experiencing ringing in the ears during active service, which has continued to the present. A review of the competent evidence of record shows the Veteran has credibly reported symptoms of tinnitus continuously since service, to include during his hearing before the undersigned. As, such the Board finds that as the Veteran is competent and credible in establishing tinnitus, resolving all reasonable doubt in favor of the Veteran, the Board finds that the claim for service connection for tinnitus must be granted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131. With chronic disease 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 clearly attributable to intercurrent causes. As tinnitus, as an organic disease of the nervous system, is among the chronic diseases listed at 38 C.F.R. § 3.309(a), the Board finds that continuity of symptomatology may serve in lieu of medical nexus. 38 C.F.R. § 3.303(b). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (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 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. Here, the Board finds that the Veteran, as a lay person, is both credible and competent to supply evidence that tinnitus has been continuous since active service. Specifically, the Board finds that, tinnitus, which manifests as ringing in the ears, is not the type of medical condition in which requires specialize medical knowledge or training to assess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A lay person, such as the Veteran, may competently state that he perceives ringing in his ears. The Veteran may also competently state when that condition started and if it has continued to the present. The Veteran has consistently asserted that he began experience ringing in the ears during service where he was continuously and consistently exposed to noise from heavy vehicles he worked on, in a closed environment, and firearms for various certification and practice, all without ear protection. To this end, the Veteran has claimed that such exposure has resulted in experiencing ringing in his ears that have continued until the present. With respect to whether the Veteran experienced an in-service disease or injury, he asserts that he was exposed to acoustic trauma through exposure to firearms training and while working on heavy vehicles. The Board finds that both are corroborated by the evidence. Here, the Board notes that the Veteran's DD-214 confirms that the Veterans military occupational specialty (MOS) was heavy mechanic, and as such, it is highly probable that he was exposed to continuous noise from various machines and heavy vehicles he was working on as part of his duties during his active service. Additionally, as part of Veteran's service, to include overseas, the Veteran would have also been required to train with firearms. As such, based on the circumstances of the Veteran's service, acoustic trauma is highly probable during service, and therefore, service noise exposure is conceded. The Board also find that the Veteran's lay statements regarding the continuity of tinnitus symptoms to be credible. The Board notes that the Veteran has noted that the ringing in his ears began during service, and that those symptoms have continued to the present. He has provided explicit statements during his hearing before the undersigned, that the ringing started during his active service, and proceeded since then. To this end, Veteran's wife, whom he was married to during active service, also corroborated complaints of ringing by the Veteran during service. Therefore, the Board finds the Veteran credible with regard to the statements of continuity of tinnitus since service. Therefore, based on the evidence and arguments presented, the Board finds that the Veteran's tinnitus was present during service and has a continuity of symptomatology since service. As the Board finds that the Veteran's lay statements have competently and credibly established continuity of symptomatology, and resolving reasonable doubt in favor of the Veteran, the claim for service connection for tinnitus must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(b). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II (DM) is remanded. The Board notes that the Veteran has not been provided a VA examination with regard to his claim for service connection for DM. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board notes that in addition to contemporaneous VA medical records, the Veteran has provided testimony in which alleges not only exposure to agent orange, but also various other chemical compound and solvents as part of his work as a heavy mechanic during his active service. As an initial matter, the Board notes that with regards to Agent Orange, determination made during the claims process was inconclusive with regards to exposure, as no additional information was provided by the Veteran in a timely manner. However, the Veteran maintains that he was exposed to such herbicides, which was stored and found at various bases in Japan, while he was stationed there. In addition to claims of Agent Orange exposure, the Veteran also maintains that he was also exposed to and worked with, on a daily basis, various solvent, motor oil, and diesel during his active service as a heavy mechanic; and that such exposure caused his development of DM. The Board finds that while the Veteran's lay assertions regarding the etiology of his DM are not competent to be dispositive of the claim for service connection, the claims of actual exposure seem to be credible, especially in light of his MOS. As such, the Board finds that the lay evidence does trigger the VA's duty to provide the Veteran a VA examination to assess the nature and etiology for the claimed condition. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Consequently, the Board finds that remand is required for the VA to fulfill its to duty to the Veteran. 2. Entitlement to service connection for neuropathy of the right upper extremity, to include as secondary to DM is remanded. 3. Entitlement to service connection for neuropathy of the left upper extremity, to include as secondary to DM is remanded. 4. Entitlement to service connection for neuropathy of the right lower extremity, to include as secondary to DM is remanded. 5. Entitlement to service connection for neuropathy of the left lower extremity, to include as secondary to DM is remanded. 6. Entitlement to service connection for erectile dysfunction, to include as secondary to DM is remanded. 7. Entitlement to service connection for retinopathy, to include as secondary to DM is remanded. With regards to the Veteran's claim for neuropathy, ED, and retinopathy, all secondary to DC, because a decision on the above remanded issue for service connection for DM could significantly impact a decision on these secondary issues, the issues are considered inextricably intertwined, and remand of these claims are also required. Harris v. Derwinski,1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). 8. Entitlement to service connection for a back disability is remanded. 9. Entitlement to service connection for hearing loss is remanded. The Veteran contends that he has a back disability and hearing loss, that is related to active service. With specific regards to his back disability, the Veteran noted during his hearing before the undersigned, that his current back pain is due to his work on heavy vehicles during active service, which required lifting and moving various heavy parts and materials. To this end, the Veteran noted that he started experience back pain during service, and that such had progressed until the present. Likewise, with regards to hearing loss, the Veteran has noted that his hearing issue arose during service, and such complaints of hearing difficulties were the result of noise exposure during service. Here, in-service noise exposure has already been conceded by the Board, herein. Therefore, given the Veteran's military occupational specialty does confirm that he did work as heavy mechanic, and his statements, there is competent evidence of a potential relationship between his back and hearing disabilities and his active service, the VA's duty to assist and provide an examination and medical opinion has been trigger and remand is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. Schedule the Veteran for VA examination(s) to determine the nature, extent, and etiology of his DM, peripheral neuropathy (bilateral upper and lower), ED, and retinopathy. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records, the Veteran's statements, and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's diabetes, peripheral neuropathy, ED, and/or retinopathy are causally related to service, to include as due to exposure to claimed mechanical solvent, motor oil, diesel fuel, or any other chemical typically used in a heavy mechanics workshop. To this end, if it is determined that Agent Orange exposure was possible, the examiner must also include such rationale and conclusion considering such exposure. With regards to the Veteran's peripheral neuropathy of the bilateral upper and lower extremities, ED, and retinopathy, if DM is found to be caused by service, the examiner must additionally make findings regard whether these conditions were caused or aggravated (made permanently worse beyond its natural progression) by his diabetes. If any case of aggravation is found, the examiner should identify a baseline level of disability prior to such aggravation. If this cannot be accomplished, the examiner must explain why this is so. All opinions should be accompanied by a clear rationale. 3. Provide the Veteran with an appropriate examination to determine the etiology of his back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the back disorder had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran's assertions of an in-service heavy lifting when his back pain began. 4. Schedule the Veteran for a VA examination by an appropriately qualified medical examiner to assess the nature and etiology of the Veteran's claimed hearing loss. After obtaining a history and reviewing the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any qualifying hearing loss had its onset during, or is otherwise related to, his military service, including in-service exposure to loud noise, which is conceded. A rationale or explanation should be provided for any opinions reached. Explicit consideration should be given to the Veteran's lay statements. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.