Citation Nr: 21069644 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-20 912 DATE: November 19, 2021 ORDER The claim of entitlement to service connection for tinnitus is granted. REMANDED The claim of entitlement to service connection for hearing loss is remanded. The claim of entitlement to service connection for an acquired psychiatric disability, to include dementia and PTSD, is remanded. The claim of entitlement to service connection for diabetes is remanded. The claim of entitlement to service connection for erectile dysfunction is remanded. The claim of entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. The claim of entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. The claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. The claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. The claim of entitlement to service connection for a liver disability is remanded. The claim of entitlement to service connection for ischemic heart disease is remanded. The claim of entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran's tinnitus began during service. CONCLUSION OF LAW The criteria for service connection tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to February 1970. This appeal is from February 2014 and April 2018 rating decisions. In May 2019, the Veteran had a personal hearing with the undersigned VLJ. 1. The claim of entitlement to service connection for tinnitus is granted. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts his tinnitus and hearing loss began while in service. He is currently diagnosed with tinnitus. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The AOJ (agency of original jurisdiction) has conceded in-service traumatic noise exposure as a mechanical maintenance apprentice and a heavy vehicle driver. The remaining inquiry is whether there is a relationship to service. The Veteran reported during his hearing that it began while in service. There is no evidence that contradicts this statement. Under 38 C.F.R. § 3.309(a), tinnitus is an 'organic disease of the nervous system,' rather than a mere symptom, and considered chronic. Fountain v. McDonald, 27 Vet. App. 258, 273 (2015). As such, it is subject to applicable presumptions, and may be established with evidence of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b) pertaining to continuity of symptomatology only applies to chronic diseases contemplated under § 3.309(a)). Here, the Veteran has credibly and competently reported the onset of tinnitus while in service, which has continued to the present day. The Board finds his statements probative. Accordingly, service connection for tinnitus is granted. REASONS FOR REMAND The Board sincerely regrets the delay this remand will cause, but it is necessary in order to preserve the Veteran's due process rights. As a threshold matter, the Board notes the Veteran reports treatment at the VAMC. No VA treatment records are associated with the claims file. Further, a February 2013 statement notes the Veteran applied for, and was granted, disability benefits from the Social Security Administration (SSA), within the preceding fifteen years. On remand, request must be made for these records. 1. The claim of entitlement to service connection for hearing loss is remanded. The October 2013 VA examination opinion is inadequate at this time to adjudicate the claim. The VA examiner opined that there were no variations in threshold greater than normal during the Veteran's service, but did not define what a normal threshold variation was. The Veteran was given hearing tests in January 1968 and January 1970. Neither are labeled as being in ASA or ISO, and therefore they need to be considered under both criteria, and the one that is most beneficial to him is applied. Here, the record does show there was an increase in both ears in the 1000 and 2000 Hertz ranges, which should be addressed. The VA examiner also did not address the Veteran's conceded noise exposure, or his reports that he has had hearing loss symptoms since he served. Finally, the examiner indicated that the Institute of Medicine (IOM), in 2006, stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure has ceased. She noted the IOM concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was unlikely. However, she did not address that the report also indicated that there had not been any longitudinal studies conducted on this subject, and did not comment on how this aspect of the IOM report impacted her opinion, if at all. McCray v. Wilkie, 31 Vet. App. 243 (2019). An updated opinion must be obtained. 2. The claim of entitlement to service connection for an acquired psychiatric disability, to include dementia and PTSD, is remanded. The Veteran has claimed service connection for both PTSD and dementia as due to service. His doctors have identified symptoms of depression and anxiety, and therefore the Board has expanded the claim to include consideration of any acquired psychiatric disability. The Veteran has not been provided with a VA examination for opinions on any diagnosis, which shall be provided on remand. In regard to PTSD, his stressor has not been confirmed. He reports that he was driving a delivery through the mountains in Korea when the truck got to a point where it could not go farther because of the ice, and then began sliding off the side of the road off towards the edge, and he was fearful that he would be killed falling off the side of the mountain. He was able to get to safety but the truck was lost. The August 2013 formal finding of lack of information to corroborate a stressor noted that the Veteran's stressor, condensed by the AOJ to "a near miss accident while delivering supplies to the DMZ," could not be verified by the JSRRC (Joint Service Records Research Center). His transportation unit history does not mention specific duties or this incident, but shows that he was within 25 miles of the DMZ. Further, the Veteran reported that motor pool sergeant covered for the loss of the truck, and he was not reprimanded for it. Given that the Veteran was a heavy vehicle driver in relative proximity of the DMZ, the Veteran's description of the incident is consistent with his service. Under these circumstances, his lay testimony may be sufficient to establish the occurrence of the stressor. On remand, an opinion must be obtained as to whether he has PTSD, or any other disability, related to this incident. The Veteran reports that his dementia is secondary to his diabetes, which is being remanded for additional development. 3. The claim of entitlement to service connection for diabetes is remanded. 4. The claim of entitlement to service connection for erectile dysfunction is remanded. 5. The claim of entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. 6. The claim of entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. 7. The claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 8. The claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 9. The claim of entitlement to service connection for ischemic heart disease is remanded. 10. The claim of entitlement to service connection for hypertension is remanded. The Veteran asserts that his diabetes is related to his service. He asserts that he was exposed to herbicides while serving around the DMZ. A veteran who, during active service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iv). The Veteran's records show that while he was in Korea, he was associated with the 60th Transportation Company, and the 69th Transportation Company and 728th Military Police Battalion. The AOJ only researched potential exposure with the 60th and not the 69th and 728th. On remand, this shall be accomplished. The Veteran asserts that his remaining claims are related to his diabetes or to his herbicide exposure, therefore they require the same development as diabetes, and the claims are intertwined. 11. The claim of entitlement to service connection for a liver disability is remanded. The Veteran asserts that his liver disability is related to his diabetes, or to his herbicide exposure. He has also asserted that during his service, he ate and drank unsanitary food and water. He reports that he had boils on his skin, which he attributed to his liver dysfunction. On remand, an opinion shall be obtained. The matters are REMANDED for the following action: 1. Associate a complete set of VA treatment records with the claims file. 2. Attempt to obtain the Veteran's disability records from SSA. 3. Research whether the 69th Transportation Company and/or the 728th Military Police Battalion is identified as a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during January and February 1969 and document the finding in the claims file 4. After completion of the above, forward the claims file to an appropriate examiner to provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's hearing loss began in service, was caused by service, or is otherwise related to service. The examiner is asked to review the record and relevant literature prior to opining. The Veteran's noise exposure has been established. He has reported experiencing hearing loss symptoms since his service. Neither his entrance nor separation hearing tests (January 1968 and January 1970) were marked as being presented in ASA or ISO units, so the examiner must consider both tests under each set of units (after proper conversion to ISO) and then apply the unit most beneficial to the Veteran's claim. The October 2013 VA examiner opined that there were variations in threshold but not greater than normal measurement variability. She did not identify what normal variability is. The October 2013 VA examiner opined that it was unlikely the Veteran's hearing loss was from service, based on the IOM 2006 report that the current understanding of auditory physiology did not include the possibility of a delay in onset of noise-induced hearing loss. She did not acknowledge that no longitudinal studies have been conducted, nor comment on how this impacted her opinion, if at all. It is up to the discretion of the examiner as to whether a physical examination is also required. If so, the examiner is asked to so notify the scheduling authority. All opinions must be supported with a complete explanation. 5. After completion of directives 1 through 3, schedule an appropriate examination for a report on whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's acquired psychiatric disabilities began in service, were caused by service, or are otherwise related to service. The examiner is asked to review the record and to conduct a thorough examination. The examiner is asked to provide a list of diagnoses, and to specifically address whether the Veteran has PTSD and dementia. For each diagnosis, the examiner is asked to opine whether there is a relationship to service, including to his reported stressor, of having his truck slide off the side of the mountain, and his fear of falling along with it. For PTSD specifically, the examiner is asked whether there is a PTSD diagnosis that conforms with the DSM-5, and if so, whether it is related to the Veteran's reported stressor of having his truck slide off the side of the mountain, and his fear of falling along with it. For dementia specifically, the examiner is asked, if not directly related to service, whether it is at least as likely as not that it was caused or aggravated by diabetes. "Aggravated" means to have caused any increase beyond the normal progression of the disability, and it need not be permanent in nature. (Continued on the next page) The examiner is asked to provide a complete explanation for all opinions. 6. After completion of directives 1 through 3, schedule an appropriate examination for a report on whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's liver disability began in service, was caused by service, or is otherwise related to service. The Veteran reports eating and drinking unsanitary food and water during his service. The examiner is asked to conduct a thorough examination, to list all diagnoses, and to opine on each. All opinions must be supported with a complete explanation. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.