Citation Nr: 21069794 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-40 092A DATE: November 19, 2021 ORDER The issue of entitlement to service connection for tinnitus is granted. The issue of entitlement to service connection for diabetes mellitus is denied. The issue of entitlement to service connection for hypertension is denied. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran developed periodic bilateral tinnitus during active-duty service that has continued since that time. 2. The Veteran's diabetes mellitus did not begin in active-duty service or manifest to compensable degree within a presumptive period following separation, nor is it otherwise attributable to service, including as a result of exposure to herbicide agents. 3. The Veteran's hypertension did not begin in active-duty service or manifest to compensable degree within a presumptive period following separation, nor is it otherwise attributable to service, including as a result of exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1965 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). There was an August 2021 Board hearing before the undersigned Veterans Law Judge (VLJ), and the transcript is of record. Service Connection To establish service connection, a showing of competent medical, or in certain circumstances, lay evidence must confirm (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 116667 (Fed. Cir 2004). Service connection may also be granted on a presumptive basis for chronic, tropical, or prisoner of war related disease as well as diseases related to exposure to an herbicide agent while in service. 38 C.F.R. § 3.307(a). Only those diseases listed in 38 C.F.R. § 3.309 are subject to presumptive service connection. 1. The issue of entitlement to service connection for tinnitus is granted. A layperson is competent to report on the onset and continuity of his current symptomatology. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a layperson is competent to observe tinnitus). In this case, the Veteran has been diagnosed with tinnitus. See 11/2/2012 VA Examination. Additionally, according to the Veteran, and confirmed by the records, he was assigned to a medevac crew while in active-duty service. See 5/14/2013 NOD; 5/10/2016 Deferred Rating; 12/15/2020 Military. The Veteran contends that, as a part of his duties, he spent most of his time riding in helicopters recovering injured Veterans from throughout Korea, but at no time was he provided with earmuffs or ear plugs for noise protection. See 8/2/2021 Hearing Transcript. He further contends that he has experienced muffled sounds and ringing in his ears since active duty service but was unaware of the extent of the problem until much later. Id. Because the Veteran is competent to report on the onset and continuation of the ringing in his ears, his report is afforded significant probative weight. Although the Veteran was afforded one VA examination regarding his claim of entitlement to service connection for tinnitus, the examiner did not review the claims file and, in any event, did not provide a nexus opinion. Because the Veteran's statement establishing that his current disability began in service and has continued since is considered to be competent and therefore afforded significant probative weight, and the VA examiner provided no opinion, the Board finds that the Veteran is entitled to service connection for tinnitus is warranted. 2. The issue of entitlement to service connection for diabetes mellitus is denied. Diabetes mellitus is a chronic disease entitled to presumptive service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within one year from the date of separation. 38 C.F.R. §§ 3.307; 3.309(a). Diabetes mellitus is also a disease associated with exposure to herbicide agents and entitled to service connection if manifested to a compensable degree at any time after the date of separation despite no record of the disease existing during service. 38 C.F.R. §§ 3.307; 3.309(e). Here, the Veteran was diagnosed with diabetes mellitus in 2003, 35 years after separation from service. See 9/13/2012 CAPRI. Therefore, he is not entitled to presumptive service connection based on this chronic disease. Furthermore, although the Veteran suspected that he may have been exposed to Agent Orange while serving in Korea, he provided no competent information to corroborate his suspicion. See 8/2/2021 Hearing Transcript. While a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses, the Veteran in this case is unsure of what he may have been exposed to and whether that exposure actually took place. See Id.; Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(a)(2). Therefore, the Veteran's lay statement is afforded no probative weight. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that it was not error for the Board to reject a veteran's lay testimony regarding in-service exposure to gases or chemicals on the basis that such exposure was not documented in his personnel records). A formal finding determined that there was a lack of information required to verify the Veteran's exposure to tactical herbicide agents, including Agent Orange during military service. 6/15/2017 Administrative Decision. Moreover, the record reflects that the Veteran served in Korea from December 1965 to January 1967, but Agent Orange was not used in Korea until September 1967. See 12/15/2020 Military Personnel Record; 38 C.F.R. § 3.307(a)(6)(iv). Thus, based on the weight of the evidence to the contrary, the Board finds that the Veteran is not entitled to presumptive service connection based on exposure to an herbicide agent, namely Agent Orange. Finally, although the Veteran is currently diagnosed with diabetes mellitus, he does not claim, nor does his service treatment records reflect that he was symptomatic of or treated for diabetes while in service. A medical opinion regarding the Veteran's diabetes mellitus is not required because the record before the Board does not indicate that the disability had a causal connection to or was associated with his active military service. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because the Veteran's diabetes was neither incurred in, nor aggravated by, his active-duty service, he is also not entitled to direct service connection for the condition. 3. The issue of entitlement to service connection for hypertension is denied. VA is obligated to provide an examination when there is competent medical evidence of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Unlike diabetes mellitus, hypertension is not a disease listed as associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). See Note 2. However, there is an indication of an association between the two that requires consideration of whether an examination is required. Specifically, the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange concluded that there was limited or suggestive evidence of an association between exposure to Agent Orange and hypertension. See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011). In this case, as mentioned above, a formal finding has already determined that there was insufficient information to verify the Veteran's exposure to herbicide agents, including Agent Orange during military service. 6/15/2017 Administrative Decision. Moreover, the Veteran was not in Korea during a period when Agent Orange was used. See 12/15/2020 Military Personnel Record; 38 C.F.R. § 3.307(a)(6)(iv). Therefore, a medical opinion regarding the Veteran's hypertension is not required because the record before the Board does not indicate that the disability had a causal connection to or was associated with his active military service. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the weight of the evidence, the Board finds that the Veteran was not exposed to an herbicide agent and is, therefore, not entitled to presumptive service connection for hypertension based on exposure. Hypertension, like diabetes mellitus, is a chronic disease entitled to presumptive service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within one year from the date of separation. 38 C.F.R. §§ 3.307; 3.309(a). Here, there is no evidence that the Veteran experienced hypertension within one year of separation much less that his hypertension manifested to a compensable degree within that period. Moreover, the Veteran makes no such claim. Thus, entitlement to presumptive service connection for hypertension under 3.309(a) is denied. Although the Veteran is currently diagnosed with hypertension, he does not claim, nor does his service treatment records reflect that he was symptomatic of, or treated for, hypertension while in service. As is the case for his claim of entitlement to service connection for diabetes mellitus, a medical opinion regarding the Veteran's hypertension is not required because the record before the Board does not indicate that the disability had a causal connection to, or was associated with, his active military service. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed.Cir.2010); Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir.2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because the Veteran's hypertension was neither incurred in, nor aggravated by, his active-duty service, he is also not entitled to direct service connection for the condition. REASONS FOR REMAND 1. The issue of entitlement to service connection for bilateral hearing loss is remanded. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In this case, the Veteran was afforded one VA examination in furtherance of his claim of entitlement to service connection for bilateral hearing loss, however it is inadequate for VA purposes because the examiner indicated that she did not review the claims file. See 11/2/2012 VA Examination. Furthermore, the Court of Appeal for Veterans Claims has assembled a non-exhaustive list of factors that, depending on the case, may be relevant for consideration when determining the adequacy and probative value of a medical opinion. The list includes whether the medical text evidence that the medical opinion relies on contains qualifying or contradictory aspects. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019). Here, the examiner opined that the Veteran's hearing loss is unlikely to have been caused by military service because, according to her, there was no sufficient scientific basis for the existence of delayed onset hearing loss. See 3/28/2013 CAPRI. However, the examiner relied on a 2006 Institute of Medicine (IOM) study that has since been refuted by additional studies that demonstrate that hearing loss is often not manifested until many years after noise exposure. See, e.g., Sharon G. Kujawa & M. Charles Liberman, Adding Insult to Injury: Cochlear Nerve Degeneration after "Temporary" Noise-Induced Hearing Loss 29(45) J. Neuroscience 14077-14085 (2009). The examiner's sole reliance on the 2006 IOM study in determining that the Veteran's hearing loss is not entitled to service connection is an additional reason why the Board finds the November 2012 opinion inadequate. Remand is required to obtain an adequate VA opinion. The matter is REMANDED for the following action: 1. Forward the claims file to an appropriate clinician to provide a medical opinion regarding the nature and etiology of the Veteran's hearing loss. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. After reviewing the claims file the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any current hearing loss disability had its onset in, or is related to any in-service disease, event, or injury, including noise exposure, including a delayed onset theory of causation? (b.) Is it at least as likely as not that any current sensorineural hearing loss manifested to a compensable degree within one year of service discharge? Please explain the reasons for your conclusions. In rendering the opinions requested above, the examiner should specifically address and consider the Veteran's claimed exposure to noise from regular helicopter travel and any response received from the Veteran clarifying the approximate date of onset of his bilateral hearing loss. The examiner is advised that the lack of a diagnosis of hearing loss in service is not, by itself, a sufficient reason to find there is no nexus to service. The salient question is whether any incident in service, including noise exposure, caused a current hearing loss disability even though it may have been initially diagnosed years after the Veteran's discharge from service (delayed onset hearing loss). A complete rationale for any opinions rendered must be provided. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If it is not possible to provide an opinion without resort to speculation, please expressly indicate as such and provide a supporting rationale as to why that is so. If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain and opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.