Citation Nr: 21073893 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 18-34 392 DATE: December 13, 2021 ORDER Entitlement to service connection for a right ankle disability, to include osteoarthritis, is denied. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a heart disorder, to include heart valve condition, is remanded. Entitlement to service connection for a thyroid disorder is remanded. Entitlement to service connection for cirrhosis of the liver is remanded. Entitlement to service connection for esophageal varices is remanded. FINDINGS OF FACT 1. A right ankle disability, to include osteoarthritis, did not manifest during service, was not diagnosed within one year of service, and is not etiologically related to service. 2. The evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss is causally or etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. A right ankle disability, to include osteoarthritis, did not manifest during service, may not be presumed to have been incurred therein, and is unrelated to service. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1963 to August 1966. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis and other organic diseases of the nervous system if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Issue 1: Entitlement to service connection for a right ankle disability, to include osteoarthritis. The Veteran contends that he sprained his right ankle during service playing basketball. See October 2021 Board hearing transcript. He stated that his ankle started bothering him approximately five years ago and he underwent arthroscopic surgery. Service treatment records in March 1966 show pain, tenderness, and swelling in the right ankle. The x-ray showed no abnormality. The June 1966 separation examination did not show a right ankle abnormality. On VA ankle examination in July 2016, the diagnosis was osteoarthritis of the right ankle. The Veteran reported that he injured his right ankle during service playing basketball and was given crutches. The ankle healed in 2 weeks. He stated that his right ankle began hurting in 1995 when he retired from his job duties. The examiner noted that the Veteran underwent arthroscopic surgery in September 2015. The examiner opined that it is less likely than not that the Veteran's current right ankle disability was caused by service based on the rationale that the right ankle strain in service resolved with no further sequela. The Board finds the July 2016 VA examination opinion to be probative as it was based on medical principles and applied to the facts of the case. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiner considered the nature of the Veteran's right ankle disability in proffering the opinion. The opinion is uncontroverted by the other competent evidence of record. As a lay person, the Veteran is competent to report symptoms pertaining to his right ankle. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the right ankle disability, to include osteoarthritis, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The Veteran's right ankle disability is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorder. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent, the matter of whether it is credible is not reached. Accordingly, because the preponderance of the evidence is against the claim of service connection for a right ankle disability, to include osteoarthritis, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Issue 2: Entitlement to service connection for bilateral hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran in statements and testimony has indicated and asserted that he has had bilateral hearing loss since service as he had noise exposure as a telephone equipment installation repairman stationed at air bases without adequate hearing protection. See, e.g., September 2018 VA audiological examination for tinnitus and October 2021 Board hearing transcript. He testified that his duties placed him within close proximity to the flight line. During the September 2018 VA audiological examination for tinnitus the Veteran reported trouble hearing since his early 20s. After service, the evidence shows that the Veteran met the criteria for bilateral hearing loss as he had 50 decibels at 4000 Hertz in both ears. See July 2016 VA audiological examination. His diagnosis was sensorineural bilateral hearing loss. Id. As summarized above, the Veteran contends that he has had bilateral hearing loss since service. In addition to the evidence discussed above, his DD 214 Form shows that his military occupational specialty was "tele equipment installation repairman." The Veteran's contentions are credible and consistent with the circumstances of his service. The Board has no reason to doubt the credibility of the Veteran's contentions. Hence, there is probative evidence with regard to a nexus on the basis of continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b), as the Veteran has a diagnosis of bilateral sensorineural hearing loss and he is competent to report that he has experienced symptoms of bilateral hearing loss since service. The Board recognizes that there is an unfavorable VA opinion of record. On the July 2016 VA audiological examination the examiner opined that it is less likely than not that the Veteran had bilateral hearing loss related to service based on the rationale that the Veteran had normal hearing during service. The VA examiner's opinion in July 2016 is of limited probative value as it is essentially based on the absence of hearing loss in service and the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, in viewing the evidence in the light most favorable to the Veteran, the Board finds that the evidence is in relative equipoise (evidence for and against the Veteran's claim is essentially equal), the benefit-of-the-doubt rule applies and the claim of entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b). Issues 4-7: Entitlement to service connection for diabetes mellitus; a heart disorder, to include heart valve condition; a thyroid disorder; cirrhosis of the liver; and esophageal varices. The evidence shows that the Veteran has been diagnosed with cirrhosis of the liver, coronary artery disease (diagnosed in March 2015), esophageal varices, diabetes mellitus type II, and hypothyroid. See, e.g., private treatment records dated in February 2014, February 2021, June 2021, and October 2021. Certain diseases associated with Agent Orange exposure in service are presumed to be service connected if the disease is manifested to a compensable degree within a specified time period. 38 C.F.R. §§ 3.307, 3.309(e). If a Veteran was exposed to a herbicide agent, including Agent Orange, during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service. Such diseases include type II diabetes mellitus and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease; and stable, unstable, and Prinzmetal' s angina), if manifested to a compensable degree at any time after active service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6)(ii). See 38 C.F.R. § 3.307 (a)(6)(ii). The Veteran contends that during service with the US Air Force he served in Taiwan at the Tainan Air Force Base for 15 months where he worked in communications and was in close proximity to the perimeter that was sprayed with Agent Orange. See October 2021 Board hearing transcript. The Veteran also testified that he was diagnosed with diabetes mellitus in his early 30s, shortly after he was discharged from service. He stated that he was discharged in 1966 and was diagnosed with diabetes mellitus type II in the 1970s. In June 2015, VA published an interim final rule establishing a presumption of exposure to certain herbicide agents for veterans who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent, such as Agent Orange, during the Vietnam era and later developed a presumptive condition. See 80 Fed. Reg. 35,246 (June 19, 2015) (now codified at 38 C.F.R. § 3.307 (a)(6)(v)). VA has determined a list of affected units, Air Force Specialty Codes and dates of service for affected reservists and active service members who had regular and repeated exposure to contaminated C-123 aircrafts which were used to spray Agent Orange. Relevant to the instant appeal, the affected active duty units and dates of service for affected crew members included Tainan Air Field in Taiwan from 1969-1970. See https://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf. The list of specialty codes for military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members include the following for enlisted personnel: flight engineer/aircraft loadmaster (1130-1149), aircrew life support specialist (1220-1229), and aircraft maintenance specialist/flight technicians (4314-4359). Id. The Veteran's service personnel records show that he served at the Tainan Air Field including from May 1965 to August 1966 as a telephone maintenance repairman. Service personnel records in February 1966 show that the Veteran as a telephone maintenance repairman in Tainan installed, repaired, and maintained telephones, key systems, intercom systems, and base cables. Although the Veteran served at Tainan Air Field before 1969, a claimant is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). On remand, the Regional Office should take appropriate action to determine whether the Veteran had been exposed to Agent Orange through his regular work on the flight line at the Tainan Air Force base in Tainan from May 1965 to August 1966. Further, the Veteran during his October 2021 Board hearing indicated that he was receiving treatment for diabetes and his thyroid disorder from the VA facility in Toledo under the Detroit VA medical system. The most recent VA treatment records in the file from the Detroit VA Medical Center were printed in October 2018 and it is unclear whether treatment records from the VA facility in Toledo have been associated with the file. On remand VA treatment records from the VA medical facility in Toledo should be associated with the file. In light of the Veteran's testimony that he was diagnosed with diabetes mellitus shortly after service, he also should be afforded a VA examination to determine whether he has diabetes mellitus type II directly related to service. Lastly, during the October 2021 Board hearing the Veteran testified that he was told that diabetes caused his liver disorder which caused the varices in the esophagus. The Veteran also stated that he was informed that his thyroid disorder was interconnected with his other disabilities to include diabetes mellitus. Thus, the issues of service connection for a thyroid disorder; cirrhosis of the liver; and esophageal varices are intertwined with the diabetes mellitus claim being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records from the VA medical facility in Toledo. All attempts associated therewith should be memorialized in the Veteran's claims file. 2. Take appropriate action to determine whether the Veteran was exposed to herbicide agents at Tainan Air Force Base in Taiwan to include as a result of working on the flight line from May 1965 to August 1966. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his diabetes mellitus type II. After reviewing the claims file, to include a copy of this remand, and examining the Veteran the examiner is asked to render the opinion requested below. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. The examiner is asked to do the following: Provide an opinion as to whether it is at least as likely as not that the Veteran's diabetes mellitus type II is related to his active duty service. In rendering the opinion the examiner is asked to consider that the Veteran testified in October 2021 that he was diagnosed with diabetes mellitus type II in the 1970s, shortly after his separation from active service in 1966. 4. After the above development has been completed, if deemed warranted schedule the Veteran for the appropriate VA examinations to determine the nature and etiology of his claimed thyroid disorder; cirrhosis of the liver; and esophageal varices as secondary to his diabetes mellitus type II. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.