Citation Nr: 21074075 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-20 919 DATE: December 14, 2021 ORDER Service connection for tinnitus is granted. REMANDED The issue of service connection for bilateral hearing loss, to include as secondary to service-connected diabetes mellitus (DM), type II, is remanded. The issue of service connection for chronic obstructive pulmonary disease (COPD), to include as due to in-service herbicide exposure, is remanded. FINDING OF FACT Giving the Veteran the benefit of the doubt, his tinnitus was caused by his in-service noise exposure. CONCLUSION OF LAW The criteria to establish entitlement to service connection for tinnitus are approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1968 to September 1972, with service in the Republic of Vietnam. Giving the Veteran the benefit of the doubt, his tinnitus was caused by his in-service noise exposure, and the claim will be granted. The issues of service connection for bilateral hearing loss and for COPD will be remanded for new VA medical opinions to determine the etiology of the conditions. Service Connection Service connection may be granted for a current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). In deciding an appeal, the Board must first determine the competency of evidence. "Competency" means that the person who makes the statement is qualified by training, education, experience through an occupation, or other reason to make the statement. For example, medical professionals are generally competent through training and experience to express opinions about whether a disability was caused by service. Generally, the opinions of medical professionals such as doctors, psychiatrists, nurses, and others who work in the health care field may be competent because they apparently have specialized training, as shown in the detail of their reports and knowledge of the facts in individual cases. Medical professionals may also report various findings of laboratory studies and testing that could be evidence in a claim, such as the level of hearing impairment, blood tests, range of motion testing in joint pain, etc. If a person making a statement is not medically trained (i.e., a "layperson"), the Board must determine in individual cases whether a veteran's particular disability is the type where a layperson's statement may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed through senses and not medical expertise. Lay testimony is competent to establish the presence of observable symptoms, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. If the Board finds that the evidence is competent, it must then determine whether the evidence is credible. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable. Whether a statement is credible is decided after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Service connection for tinnitus is granted. The Veteran contends that his tinnitus is related to in-service noise exposure. The Veteran contends that his tinnitus was caused by his service as a tracked vehicle mechanic and in-service noise exposure from rocket and mortar attacks while in Vietnam. He is competent as a layperson to report that he has had ringing in the ears since service. Although the April 2015 VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of in-service noise exposure, during the June 2021 Board hearing, the Veteran testified that he first noticed ringing and buzzing in his ears in-service due to noise exposure and that he has had ringing in his ears since his service. The Board finds the Veteran is competent to report the in-service onset of his disorder. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of service connection for bilateral hearing loss, to include as secondary to service-connected DM, is remanded. 2. The issue of service connection for COPD, to include as due to in-service herbicide exposure, is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: Regarding the issue of service connection for bilateral hearing loss, the Veteran was provided a VA examination in April 2015, in which the examiner provided a negative nexus opinion as to whether the Veteran's hearing loss is related to his service, to include in-service noise exposure. In support of the opinion, the examiner noted the following: there were no threshold shifts between the service entrance and separation audiograms, and the Veteran reported first having subjective hearing loss in 2000 and had nearly 30 years of post-service occupational noise exposure. In an August 2021 private medical letter, Dr. S.D.B., stated that the Veteran's DM could be linked to his chronic hearing loss. Since the Veteran is service-connected for DM, and there is evidence that suggests a potential relationship between his DM and his bilateral hearing loss, remand is necessary to obtain a VA medical opinion as to whether his current bilateral hearing loss was caused or aggravated by his service-connected DM. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the issue of service connection for COPD, the Veteran was provided a VA examination in August 2018, in which the examiner opined that the Veteran's COPD is not the result of his ischemic heart disease (IHD). In support of the opinion, the examiner noted that COPD is a disease of the respiratory system and IHD is a disease of the circulatory system, and that the two diseases involve unrelated systems and do not share a related etiology. In a July 2021 private medical note, Dr. D.M., stated that the Veteran's exposure to Agent Orange (AO) in-service can be a contributing factor in the development of COPD. Since the Veteran had service in Vietnam and in-service herbicide exposure is presumed, and there is evidence that suggests a potential relationship between his in-service herbicide exposure and his COPD, remand is necessary to obtain a VA medical opinion as to whether his COPD was incurred in-service, to include as due to in-service herbicide exposure. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 79. THE REMAND DIRECTIVES FOLLOW. 2. Schedule the Veteran for a VA examination with an appropriate VA examiner regarding the etiology of his bilateral hearing loss, to include as secondary to his service-connected DM. All evidence and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The examiner MUST respond to the following: (a.) Provide an opinion as to whether the Veteran's current bilateral hearing loss was caused or aggravated by his service-connected DM. (b.) The examiner MUST specifically discuss the August 2021 private medical letter, from Dr. S.D.B., stating that the Veteran's DM could be linked to his chronic hearing loss. (c.) The examiner MUST provide a complete and full explanation for the opinions provided. (d.) The examiner is ADVISED that an opinion without a complete and full explanation is not adequate. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner's attention is drawn to the following: * The Veteran's DM is service connected. * The Veteran has a current diagnosis of bilateral sensorineural hearing loss. * The Veteran had service as a tracked vehicle mechanic and had in-service noise exposure. * The Veteran worked as a heavy equipment mechanic post-service, working on cranes, conveyors, fork trucks, etc. * During the April 2015 VA examination, the examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in-service, to include in-service noise exposure. The examiner noted that the Veteran served as a tracked vehicle mechanic, with service in Vietnam. The examiner also noted that the Veteran worked as a heavy equipment operator post-service, and that he first reported subjective hearing loss post-service in 2000 and reported that his hearing loss became more noticeable after he retired in 2006. The examiner noted that a comparison between the service entrance and separation audiograms shows no threshold shifts. The examiner explained that the Veteran was discharged over 40 years ago, and he had nearly 30 years of occupational noise exposure. The examiner stated that subjective hearing loss began at a time too remote from service to be causally connected. * During the June 2021 Board hearing, the Veteran testified to daily in-service noise exposure as a mechanic, to include exposure to noise from jet engines and generators. He also testified to experiencing rocket and mortar attacks while in Vietnam, and that his hearing loss began in-service and worsened since his service. * An August 2021 private medical letter, from Dr. S.D.B., stating that the Veteran's DM could be linked to his chronic hearing loss. 3. Schedule the Veteran for a VA examination with an appropriate VA examiner regarding the etiology of his COPD, to include as due to presumed in-service herbicide exposure. All evidence and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The examiner must respond to the following: (a.) The examiner is ADVISED that the Veteran had service in Vietnam and in-service herbicide exposure is PRESUMED. (b.) Provide an opinion as to whether the Veteran's COPD is related to his service, to include his presumed in-service herbicide exposure. (c.) The examiner MUST specifically discuss the July 2021 private medical note, from Dr. D.M., stating that the Veteran's exposure to AO in-service can be a contributing factor in the development of COPD. (d.) If the examiner determines that the Veteran's COPD is not related to his service, to include his presumed in-service herbicide exposure, to the extent possible, opine as to the likely etiology of his COPD. (e.) The examiner MUST provide a complete and full explanation for the opinions provided. (f.) The examiner is ADVISED that an opinion without a complete and full explanation is not adequate. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner's attention is drawn to the following: * The Veteran had service in Vietnam and in-service herbicide exposure is PRESUMED. * VA and private medical records show a diagnosis of COPD with a date of diagnosis of 2007. * A March 2007 private medical record shows that the Veteran denied current cigarette use but reported a history of smoking in the past. * The August 2018 VA examination. * During the June 2021 Board hearing, the Veteran testified to smoking a pack of cigarettes per day in-service and that he continued to smoke for 40 years thereafter. He indicated that he did not remember having difficulty breathing while in Vietnam. * A July 2021 private medical note, from Dr. D.M., stating that the Veteran's exposure to AO in-service can be a contributing factor in the development of COPD. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed, and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 4. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in their entirety, issue an appropriate supplemental statement of the case (SSOC), and forward the claims to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON THE NEXT PAGE.) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.