Citation Nr: 21075218 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-14 854 DATE: December 17, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral lower extremity peripheral neuropathy as due to herbicide agent exposure is granted. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his tinnitus is related to acoustic trauma sustained during active service. 2. Resolving all doubt in favor of the Veteran, his bilateral lower extremity peripheral neuropathy is related to herbicide agent exposure sustained during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral lower extremity peripheral neuropathy as due to herbicide agent exposure have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to September 1968, to include service in the Republic of Vietnam. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Anchorage, Alaska. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board in September 2021. A transcript of the hearing has been associated with the claims file. The record was held open for 60 days following the hearing to allow for the submission of additional evidence. Service Connection Criteria 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as organic diseases of the nervous system are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Additionally, in Fountain v. McDonald, 27 Vet. App. 258 (2015), the Court of Appeals for Veterans Claims (Court) determined that tinnitus is an "organic disease of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. The Board recognizes that in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C. § 1154(b). In this case, the Veteran's service personnel records show that had active service in the Republic of Vietnam during the Vietnam Era, and that he participated in a Vietnam Counter Offensive Phase II. See DD Form 214; see also Military Personnel Record, February 2, 1968. Additionally, the Veteran testified at his Board hearing that he experienced mortar fire during his active service. As such, he is a combat veteran and his reports of acoustic trauma from mortar fire are consistent with the circumstances of his service. 38 U.S.C. § 1154. If the veteran engaged combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Every reasonable doubt must be resolved in the Veteran's favor, and service connection of injuries or diseases linked to combat may be rebutted only by clear and convincing evidence. 38 U.S.C. § 1154(b). 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. Here, the Veteran has verified service in the Republic of Vietnam from August 31, 1966 to August 29, 1967. See DD Form 214. Accordingly, his exposure to herbicide agents is conceded and presumed. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Tinnitus The Veteran seeks service connection for tinnitus as a result of acoustic trauma sustained during his active service. Specifically, the Veteran testified that he experienced mortar fire during his active service, and that the onset of tinnitus began during active service and has continued since. See Board hearing transcript, September 9, 2021. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, as the Veteran has reported having tinnitus, the Board finds he has a current disability. Service treatment records are unremarkable for complaints of, treatment for, or diagnoses of tinnitus. As noted above, the Board concedes that the Veteran sustained acoustic trauma during active service. At an August 2017 VA examination, the examiner diagnosed tinnitus. At that time, the Veteran reported he had a head injury during active service in 1967 with about nine or ten months left in his active service, and the tinnitus began at that time. The examiner opined that the Veteran's tinnitus was less likely than not a symptom associated with the Veteran's hearing loss because the Veteran did not have a change in hearing during the time he was in the military. The examiner opined that his tinnitus was more likely than not due to the head injury that was treated in the field, and its onset during his deployment, about nine or ten months prior to his discharge. The Board notes that this opinion is internally inconsistent in that the examiner opined the Veteran's tinnitus was less likely than not related to service but that the onset began following an injury that occurred during active service. At his September 2021 Board hearing, the Veteran reported that his tinnitus began during basic training at the rifle range, and that his ears started ringing when he was firing the rifle. He reported he the tinnitus worsened during his service, and due to mortar rounds, artillery fire, and other explosions that occurred in the Republic of Vietnam. He testified that he was not provided hearing protection during service and reported the tinnitus to his drill sergeant at the time. The Veteran testified that he did not injure his head in the field, as indicated by the August 2017 audiologist. He testified that his tinnitus had its onset during service and has continued since. Additionally, the Veteran's wife testified at the September 2021 Board hearing that the Veteran complained of his tinnitus due to noise and gunfire and war explosions during his service in Vietnam and would mention his tinnitus on occasion. In sum, the Veteran has competently and credibly reported that he had tinnitus that had its onset in service and has persisted since service. Notably, the August 2017 VA examiner indicated that the Veteran's tinnitus began during active service, and the Veteran testified at his September 2021 Board hearing that his tinnitus had its onset during active service. The Veteran has a current diagnosis of tinnitus, and acoustic trauma during active service has been conceded. Although August 2017 opinion contains only a brief rationale, the Board notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003). As tinnitus was noted during service and characteristic manifestations of the disease process were identified during service, presumptive service connection, to include on the basis of continuity of symptomatology, is warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Accordingly, resolving all doubt in favor of the Veteran, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Bilateral Lower Extremity Peripheral Neuropathy The Veteran seeks entitlement to service connection for bilateral lower extremity peripheral neuropathy as due to herbicide agent exposure sustained during active service. Additionally, the Veteran testified that he experienced symptoms of peripheral neuropathy in his bilateral legs that had its onset shortly after leaving Vietnam, during his active service, and have continued since. See Board hearing transcript, September 9, 2021; see also Notice of Disagreement, September 20, 2017. Additional statements in support of the Veteran's claim includes a March 2018 statement submitted by his wife, indicating that he has had peripheral neuropathy since at least 1976; and a statement submitted by the Veteran. See Statements, recv'd March 10, 2018; see also Lay statement, recv'd September 9, 2021. Service treatment records are unremarkable for complaints of, treatment for, or diagnoses of peripheral neuropathy. However, the Veteran indicated he had cramps in his legs during active service at his separation examination in September 1968. See Service Treatment Record, Report of Medical History, September 12, 1968. As noted above, the Veteran's in-service herbicide agent exposure is conceded. Turning to the question of whether there is an etiological relationship between the Veteran's service and his peripheral neuropathy, the Board notes that the record contains three etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board will consider each of these opinions below. In July 2017, the Veteran was afforded a VA examination. At that time, the examiner diagnosed bilateral lower extremity peripheral neuropathy. The Veteran reported he had numbness, tingling, and constant cramping that had its onset during active service and since. An opinion as to the nature and etiology of the Veteran's peripheral neuropathy was not provided at this time. Of record is a June 2013 private treatment letter written by Dr. S.H. At that time, the physician found that the Veteran's testing results were consistent with an axonal sensorimotor polyneuropathy. In his letter, the physician indicated that the Veteran's case may be complicated by baseline polyneuropathy that was present prior to February 2013, and that he spoke with the Veteran that the two most common causes of acquired polyneuropathy are diabetes and excessive alcohol use. The Board finds this opinion inadequate to decide the claim. In this regard, the physician provided common risk factors but did not apply them to the specifics of the Veteran's case, namely it is unknow if the Veteran has diabetes or excessively used alcohol. Additionally, the physician failed to address the Veteran's conceded exposure to herbicide agents during his service in Vietnam and did not address his lay statements and contentions regarding the onset and continuity of his symptoms. Additionally, the physician failed to provide supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, this opinion is afforded little, if any probative weight. A September 2021 etiology opinion was provided by Dr. S-Q.G., a VA physician. In that letter, this physician noted that the Veteran had bilateral lower leg peripheral neuropathy, the Veteran reported symptoms that started while he was in service, and his exposure to herbicide agents. Therefore, the physician opined that the Veteran's peripheral neuropathy was related to his herbicide agent exposure. The Board finds the September 2021 private etiology opinion to be highly probative. This opinion also had clear conclusions and supporting data, as well as reasoned medical explanations connected the Veteran's peripheral neuropathy to his service. Nieves-Rodriguez v. Peake, supra. Additionally, the physician took into consideration the circumstances of the Veteran's service, his statements and contentions, when relating his peripheral neuropathy to herbicide agent exposure sustained active service. This opinion is being afforded great probative weight. There is no contrary probative opinion of record. In sum, the Veteran has a current diagnosis of bilateral lower extremity peripheral neuropathy. There is only one probative etiology opinion of record, which is in support of the Veteran's claim for entitlement to service connection. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, supra. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for bilateral lower extremity peripheral neuropathy is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 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.