Citation Nr: 21074838 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-48 611 DATE: December 16, 2021 ORDER Entitlement to service connection for coronary artery disease as due to herbicide agent exposure is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for chronic kidney disease, to include as due to exposure to the contaminated water at Camp Lejeune, is remanded. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents during his service within 12 nautical miles from the shores of the Republic of Vietnam. 2. The Veteran has a current diagnosis of coronary artery disease that is presumed to be related to herbicide agent exposure sustained during active service. CONCLUSION OF LAW The criteria for service connection for coronary artery disease as due to herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1116B, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1972 to June 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Houston, Texas. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board in August 2021. A transcript of the hearing has been associated with the claims file. Service Connection Coronary Artery Disease The Veteran has asserted that he has coronary artery disease that is etiologically related to his active service. In this case, the Veteran's exposure to herbicide agents is presumed as he had service within 12 nautical miles from the shores of the Republic of Vietnam. See VA Memo, April 21, 2020. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With respect to service connection based on herbicide agent exposure, certain diseases specified in 38 U.S.C. § 1116(a)(2), and additional diseases the Secretary determines warrant a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, shall be considered to have been incurred in or aggravated in the line of duty in the active military, naval, or air service, notwithstanding that there is no record of evidence of such disease during the period of such service. See 38 U.S.C. § 1116B(a)(1). This presumption applies to any veteran who, during active military, naval, or air service, served in or near the Korean Demilitarized Zone (DMZ), during the period beginning on September 1, 1967, and ending on August 31, 1971. See 38 U.S.C. § 1116B(a)(2). For the purposes of 38 U.S.C. § 1116B, the term "herbicide agent" means a chemical in an herbicide used in support of United States and allied military operations in or near the DMZ, as determined by the Secretary in consultation with the Secretary of Defense, during the period beginning on September 1, 1967 and ending on August 31, 1971. The Blue Water Navy Vietnam Veterans Act of 2019 became effective on January 1, 2020. 116 P.L. 23, 133 Stat. 966 (2019). Pursuant to this legislation, for purposes of determining whether a veteran was presumptively exposed to herbicide agents, the term "service in the Republic of Vietnam" was expanded to include service in the offshore waters, which includes the territorial sea extending 12 nautical miles from the shores of that nation. 38 U.S.C. § 1116A. The statute further delineates latitudinal and longitudinal intersecting points within the territorial waters of Vietnam and Cambodia. Notably, the Republic of Vietnam specifically refers to what was South Vietnam during the Vietnam War. See Procopio v. Wilkie, 913 F.3d 1371, 1375-76 (Fed. Cir. 2019). Per his military personnel record, the Veteran has verified service within 12 nautical miles from the shores of the Republic of Vietnam during the Vietnam era. See VA Memo, April 21, 2020. His exposure to herbicide agents is conceded. Accordingly, the Board finds that the Veteran had service within 12 nautical miles from the shores of the Republic of Vietnam. Moreover, there is no affirmative evidence that the Veteran was not exposed to herbicide agents during his service. A review of the record shows that the Veteran has a diagnosis of coronary artery disease. Coronary artery disease is a disease enumerated for purposes of presumptive service connection due to exposure to herbicide agents. 38 C.F.R. § 3.309(e). There is no dispute that the Veteran has a current diagnosis for the claimed disorder. In sum, the Veteran is presumed to have been exposed to herbicides while serving within 12 nautical miles offshore from the Republic of Vietnam, and he has a current diagnosis of coronary artery disease. Therefore, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for coronary artery disease is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Service Connection Bilateral Hearing Loss and Tinnitus The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus as a result of his active service. Specifically, the Veteran asserts that he was exposed to hazardous noise exposure in the form of guns and anti-missiles, and that he experienced a decrease in hearing acuity during active service that has continued since. See Board hearing testimony, August 6, 2021. Additionally, the Veteran asserts he experienced tinnitus during active service and since. Id. The Veteran was afforded a VA audiological examination in September 2015. At that time, the examiner opined that, due to the inconsistencies of the Veteran's responses, an accurate opinion regarding the etiology and type of hearing loss the Veteran may or may not have could not be rendered without resorting to mere speculation. With regard to tinnitus, the examiner opined that tinnitus was less likely than not caused by or a result of military noise exposure because due to the transient nature of the ringing in his ears, lasting only 20 or 30 seconds, the examiner believed the Veteran was experiencing transient ear noise and not tinnitus. The Board finds the September 2015 VA opinions inadequate to decide the claim. In this regard, the September 2015 examiner indicated that an opinion could not be provided without resorting to mere speculation, then speculated that the Veteran's bilateral hearing loss was less likely than not etiologically related to active service without explanation. Additionally, the examiner's opinion as to tinnitus is internally inconsistent, namely, that the Veteran has ringing in his ears but it is not tinnitus and did not provide further elaboration. Thus, the September 2015 etiology opinion is insufficient to decide these claims. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given these deficiencies, remand is again required to afford the Veteran an additional VA examination to determine the nature and etiology of any currently present bilateral hearing loss and tinnitus. Barr v. Nicholson, supra. 2. Service Connection Chronic Kidney Disease The Veteran seeks entitlement to service connection for chronic kidney disease as a result of his active service. Specifically, the Veteran asserts that exposure to contaminated water at Camp Lejeune caused his kidney disease. The Veteran was afforded a VA examination in February 2016 for this chronic kidney disease. At that time, the examiner opined that chronic kidney disease was less likely than not caused by or the result of the Veteran's exposure to the contaminated water at Camp Lejeune. In this regard, the examiner noted that the Veteran was exposed to the contaminated water at Camp Lejeune for a period of 161 days, which is less than the average duration of exposure of 16 months. In addition, the examiner noted that the Veteran was noted to have stage III chronic kidney disease in October 2014, approximately 40 years after leaving Camp Lejeune. Further, the examiner noted the Veteran had normal urinalyses prior to separation from service in 1974. The examiner noted the Veteran's risk factors included age, race, and comorbidities. Finally, the examiner opined that, although there is some suggestion of occupational exposures resulting in chronic kidney disease, those studies suggest that such exposure must be at higher levels and longer-term exposures, and that renal disease would have its onset at the time of exposure and likely improve upon cessation of exposure. Therefore, the examiner opined that, since the Veteran developed chronic kidney disease many decades after service and had many other high-risk comorbidities, it was more likely than not that the chronic kidney disease was as a result of the Veteran's other risk factors. The Board finds the March 2016 VA opinion inadequate to decide the claim. In this regard, the VA examiner relied on medical literature indicating that exposure to contaminates should be at higher levels and longer periods than that of the Veteran but did not address the circumstances and specifics of this Veteran's case when rendering the negative opinion. Thus, the March 2016 medical opinion is insufficient to decide this claim. Barr v. Nicholson, supra; Stefl v. Nicholson, supra; Nieves-Rodriguez v. Peake, supra. Given these deficiencies, remand is again required to afford the Veteran an additional VA examination to determine the nature and etiology of his chronic kidney disease. Barr v. Nicholson, supra. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss and tinnitus. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset during any period of service, or is otherwise related to such period of service, to include his acoustic trauma? (B) Is it at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus had its onset during any period of service, or is otherwise related to such period of service, to include his acoustic trauma? A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, the Veteran should be afforded an appropriate VA examination to determine the etiology of his claimed chronic kidney disease. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for further physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran's chronic kidney disease had its onset during any period of service, or is otherwise related to such period of service? The examiner should specifically consider the Veteran's exposure to the contaminated drinking water during his service at Camp Lejeune, exposure to herbicide agents and any other hazardous exposures sustained. The examiner is reminded that establishing service connection is not based on the degree to which something in service causes a current disability, and that service connection does not require exposure to contaminated drinking water at Camp Lejeune to be the "main etiology" for the Veteran's kidney disease. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.