Citation Nr: 21072474 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 21-00 915 DATE: December 3, 2021 ORDER Service connection for tinnitus is granted. Service connection for hypertension is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for prostate cancer, to include as due to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. Tinnitus had its onset in service. 2. The Veteran's hypertension is related to and had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1961 to February 1965, including service at Camp Lejeune. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C. § 5108, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA's) decision on their claim to seek review. The AMA became effective on February 19, 2019. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 11, 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A rating decision notification letter was issued to the Veteran on February 14, 2019. In March 2019, the Veteran submitted a VA Form 10182 (Notice of Disagreement (NOD)) under the AMA framework, electing the hearing lane by the Board. In May 2019, the Board issued a letter to the Veteran, acknowledging receipt of his VA Form 10182 and his request for a hearing. In a September 2021 letter, the Board notified the Veteran he was scheduled for an upcoming hearing. In November 2021, the Board notified the Veteran that the May 2019 letter erroneously indicated that his appeal had been docketed under the AMA appeal system, and that his appeal would remain in the legacy appeal system. See 38 C.F.R. §§ 3.2400, 19.2 (AMA applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019). Inasmuch as the decision on appeal was issued prior to February 19, 2019, the Veteran was unable to appeal the claim under the AMA appeal system, and thus his appeal, as indicated in the November 2021 Board letter, remains in the legacy appeal system. Accordingly, this appeal will be adjudicated in the Legacy system. The Veteran and his wife testified before the undersigned Veterans Law Judge in a November 2021 hearing. The transcript of the November 2021 Board hearing satisfies the criteria for a Substantive Appeal and thus the Veteran perfected his appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993); see also Archbold v. Brown, 9 Vet. App. 124 (1996). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for tinnitus. The Veteran seeks service connection for tinnitus, contending such began during service and continued since his discharge from service as a result of weapons-related acoustic trauma and acoustic trauma from the engine room while stationed aboard ships. The Veteran's DD Form 214 shows that his military occupational specialty was radio telegraph operator. His service personnel records show he was stationed aboard the USNS W.H. Gordon (T-AP-117). At the November 2021 Board hearing, the Veteran and his spouse testified they were married during his active duty service, that they both observed ringing in the ears during service, and that such has been recurrent since service. The Board finds the Veteran and his spouse are competent to report his noise exposure and the onset of his tinnitus, and the Board finds their testimony and statements credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Further, tinnitus is a chronic disease for which there is a presumption of service connection under 38 C.F.R. § 3.303(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran is competent to report the onset and recurrence of his tinnitus symptoms and the Board finds the Veteran's lay statements credible. As such, service connection for tinnitus is warranted. 2. Entitlement to service connection for hypertension. The Veteran reports that he is entitled to service connection for hypertension. The Veteran's service treatment records show borderline elevated blood pressure readings during service. See, e.g., February 1961 enlistment report of medical examination (showing blood pressure reading of 130/84); February 1965 separation report of medical examination (showing blood pressure reading of 134/76). The Veteran has a current diagnosis of hypertension. See November 2018 VA treatment record. Thus, the first element of service connection is met. At the November 2021 Board hearing, the Veteran testified he has been taking blood pressure medication "forever." The Veteran's spouse testified the Veteran was prescribed blood pressure medication within a year of separation from service. The Board finds that the competent and credible evidence shows that the Veteran's hypertension has been recurrent since service. The Board finds the Veteran and his spouse's statements, and the relevant medical records, are credible in showing that his hypertension is related to service. The Veteran and his spouse are competent to report his hypertension began in service and have been recurrent since, and the Board finds the Veteran and his spouse's statements credible. Their testimony is competent evidence as to what they were told about the diagnosis of hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis. Further, VA recognizes hypertension is a chronic disease. 38 C.F.R. § 3.309(a). Thus, service connection is warranted for hypertension. REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for diabetes mellitus is remanded. 5. Entitlement to service connection for prostate cancer, to include as due to contaminated water at Camp Lejeune, is remanded. 6. Entitlement to service connection for a left knee disability is remanded. 7. Entitlement to service connection for a right knee disability is remanded. As explained above, in March 2019, the Veteran expressed disagreement with a February 2019 rating decision that denied service connection for bilateral hearing loss, diabetes mellitus, prostate cancer, a left knee disability, and a right knee disability. For the reasons provided above, the RO has not yet issued the Veteran a Statement of the Case (SOC) regarding these claims and must do so on remand. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Here, under the unique circumstances of this case, although the Veteran has a perfected appeal, the RO must readjudicate the appeal in the SOC. See Tomlin; Archbold. The Veteran's service personnel records show that he served at Camp Lejeune and the Board notes that it is conceded the Veteran was exposed to contaminated water while stationed at Camp Lejeune, and such theory of entitlement must be addressed when adjudicated regarding the claim for service connection for prostate cancer. The matters are REMANDED for the following action: 1. Issue a SOC addressing the claims of service connection for bilateral hearing loss, diabetes mellitus, prostate cancer, right knee disability, and a right knee disability, to specifically include whether the prostate cancer is due to conceded contaminated water during service at Camp Lejeune. 2. Thereafter, unless service connection is established for bilateral hearing loss, diabetes mellitus, prostate cancer, right knee disability and left knee disability, the appeal should be returned to the Board. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.