Citation Nr: 21012097 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-27 071 DATE: March 3, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as a result of herbicide exposure and/or jet fuel is remanded. Entitlement to service connection for neuropathy, bilateral upper extremities, to include as a result of herbicide exposure and/or secondary to diabetes mellitus, type II is remanded. Entitlement to service connection for neuropathy, bilateral lower extremities, to include as a result of herbicide exposure and/or secondary to diabetes mellitus, type II is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, tinnitus is etiologically related to his period of active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1969. These matters come before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is a result of being around noise while working in the hangar. See VA Form 9. Service connection requires evidence showing: (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 condition incurred or aggravated by service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s service treatment records show a threshold shift in hearing from enlistment to separation. The Veteran was afforded a VA examination in February 2016. The Veteran reported recurrent tinnitus that has gradually increased overtime. The examiner opined that it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. The examiner expressed that there were no reports of tinnitus noted in review of the Veteran’s service treatment records. The examiner stated that while there are numerous possible causes of tinnitus, an audiologist can only address the etiology of tinnitus as it relates to auditory system injuries. Thus, the examiner stated that without evidence of an objectively verifiable noise injury, the association between the claimed tinnitus and noise exposure does not exist. Although the VA examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure, the Board finds the Veteran’s statements as to the onset of his tinnitus in service to be competent and credible. The Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d at 1376-77. Therefore, the Veteran is competent to attest to the date of onset of his tinnitus symptoms, i.e., ringing in the ears. Moreover, tinnitus-or, ringing in the ears-is the type of disability that may be established on the basis of lay evidence as it is subjective in nature. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, resolving reasonable doubt in the Veteran’s favor, service connection for tinnitus is established. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is a result of noise exposure while in service. The Veteran’s DD Form 214 shows that the Veteran’s Military Occupational Specialty (MOS) was a general office clerk. The Board notes that audiology testing standards were set by the American Standards Association (ASA) prior to 1967. After that date, audiometric testing was generally conducted using ISO (International Standards Organization) or ANSI (American National Standards Institute) measurements. Current VA regulations which define hearing loss for VA purposes are based on decibel (dB) measurements recorded in ISO-ANSI units. See 38 C.F.R. § 3.385. Accordingly, VA uses a system to convert ASA units to ISO units that adds 15 dB to 500 Hz, 10 dB to 1000, 2000, and 3000 Hz, and 5 dB at 4000 Hz. The conversion has been done to the below results and the ISO-ANSI units are reflected in parentheses. The Veteran had an in-service audiological evaluation upon enlistment in 1965. Auditory thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: -5 (10), -5 (5), -5 (5), -5 (5), and -5 (0). Auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: -5 (10), -5 (5), -5 (5), -5 (5), and -5 (0). The Veteran also had an in-service audiological evaluation, using ISO, upon separation in 1969. Auditory thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 20, 10, 10, 15, 15. Auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 25, 20, 15, 20, 20. As such, the Board notes that there was a threshold shift in hearing acuity from enlistment to separation, conceding noise exposure. The Veteran was afforded a VA examination in February 2016. Audiogram testing showed a current bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The examiner stated that the Veteran’s claim file was reviewed, and enlistment and separation audiograms were located. The examiner expressed that the Veteran’s hearing was within normal limits at enlistment and separation. Given that the Veteran’s hearing was within normal limits at separation, the examiner opined that it is less likely than not that the Veteran’s current hearing loss is related to military noise exposure. The examiner expressed that the Veteran’s claims folder shows no clear or convincing evidence of hearing loss due to military noise exposure as no hearing loss consistent with exposure to hazardous levels of noise was present at the Veteran’s separation from military service. The examiner concluded that any hearing loss the Veteran currently has, is subsequent to military service. The Board finds the February 2016 VA opinion to be inadequate with respect to the question of nexus as the examiner based the opinion primarily on the fact that the Veteran’s hearing was within normal limits at separation. However, the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In addition, the Board finds the VA opinion to be inadequate because the examiner did not address the Veteran’s threshold shift in hearing acuity from enlistment to and separation. Furthermore, the claims file indicates that the Veteran is in receipt of Social Security Administration (SSA) benefits. On remand, the AOJ should obtain the Veteran’s SSA medical records. 2. Entitlement to service connection for diabetes mellitus, type II, to include as a result of herbicide exposure and/or jet fuel is remanded. The Veteran contends that his diabetes mellitus, type II is related to Agent Orange exposure while stationed at Eglin Air Force Base (AFB) from 1966 to 1967. The Veteran stated that he worked as maintenance on the flight line 3214 OMS (Ordinance Maintenance Squad). The Veteran also stated that he was exposed to Agent Orange due to his contact with C-123 aircraft during his time in Eglin, while working in the hangars. See June and July 2020 Statement in Support of Claim. The Veteran noted that he jogged around the perimeter of the base. Additionally, the Veteran has expressed that his diabetes may also be due to exposure to JP-4/5/8 jet fuel. See VA Form 9. The Veteran’s military personnel records verify that the Veteran worked as an Administrative Clerk at 3214 Organization Maintenance Squad, Eglin AFB from December 10, 1966 through August 16, 1967. The Veteran’s military personnel records note that the Veteran performed clerical duties in the supervision office of the Fighter Maintenance Section. The Veteran submitted “Information from the Department of Defense on Herbicide Tests and Storage outside of Vietnam” that listed Eglin AFB, Florida, C-52A test area from 1962 to 1970. In an email response from VBA Washington (Agent Orange), it was expressed that the Department of Defense (DoD) has provided Compensation Service with a listing of locations outside Vietnam and the Korean DMZ where Agent Orange was used, tested, or stored. It was noted that, with regards to the Veteran, testing for herbicide spraying techniques was conducted at Eglin AFB during November and December of 1952 and again from June to September of 1968. It was noted that a 2 square-mile area of Eglin’s 88 square miles was used to test various herbicides from 1962 to 1970. It was discussed that this testing was done at a remote forested site called C-52A, which was not located near base personnel. It was discussed that it was not open to base personnel. It was noted that there is no general acknowledgement of Agent Orange exposure associated with service at Eglin. It was noted that for exposure to be considered, the Veteran, as a clerk, would need to provide evidence of working at, or being associated with, the C-52A test site. In May 2016, the Defense Personnel Records Information Retrieval System (DPRIS) indicated that, after extensive research, DPRIS was unable to locate the1966 histories submitted by the squadron or its higher headquarters. However, it was noted that unit histories and supporting documents of Air Force units are in the custody of the Air Force Historical Research Agency, Maxwell Air Force Base, Alabama. On June 8, 2016, the RO sent a letter to Air Force Historical Research Agency regarding the Veteran’s claim based on exposure to Agent Orange while performing military duties. On June 17, 2016, the Air Force Historical Research Agency sent a response, notifying the RO to resubmit the request with a valid Case Worker name, email, and telephone number before any research could be conducted. On July 15, 2016, VA completed a Formal finding that the Department of Veterans Affairs (VA) lacks the information the U.S. Army and Joint Services Records Research Center (JSRRC) requires to verify herbicide exposure in Elgin AFB or other locations during military service. It was noted that the RO sent a letter to the Veteran on March 23, 2016, asking the Veteran to provide a 60-day time frame of herbicide exposure, however the Veteran failed to provide the 60-day time frame. The Board finds a remand is necessary for multiple reasons. First, with regards to the RO’s request to the Air Force Historical Research Agency, it appears that the RO failed to resubmit its request with a valid Case Worker name, email, and telephone number in order for any research to be conducted. Second, remand is necessary for a formal finding regarding herbicide exposure that considers the complete term of the Veteran’s service in Eglin AFB, Florida. The U.S. Court of Appeals for Veterans Claims (CAVC) has indicated that the practice of limiting JSRRC requests for records research to a 60-day window was simply an effort to ease the workload of JSRRC employees tasked with searching records, and did not establish that a search would be futile, or that the records do not exist or are not in the custodian’s possession. See Gagne v. McDonald, 27 Vet. App. 397 (2015). Consequently, unless the available information is otherwise insufficient for such development, the AOJ must submit a request to JSRRC for a search to verify herbicide exposure, to include multiple requests, each covering a different 60-day period, if necessary. See Gagne v. McDonald, 27 Vet. App. 397, 403 (2015); see also 38 U.S.C. § 5103A (c)(2); 38 C.F.R. § 3.159 (c)(2). Documentation of such requests and the responses from the JSRRC should be associated with the record. Third, the Veteran expressed that his diabetes mellitus, type II may be related to exposure to JP-4/5/8 jet fuel. The Veteran has not been afforded a VA examination in order to determine the etiology of his diabetes mellitus, type II. Thus, remand is necessary in order to afford the Veteran an examination. 3. Entitlement to service connection for neuropathy, bilateral upper extremities, to include as a result of herbicide exposure and/or secondary to diabetes mellitus, type II is remanded. 4. Entitlement to service connection for neuropathy, bilateral lower extremities, to include as a result of herbicide exposure and/or secondary to diabetes mellitus, type II is remanded. The Board finds that a remand is necessary in order to obtain a VA examination that discusses the etiology of the Veteran’s bilateral upper and lower extremity neuropathy. In addition, the Board notes that there is an indication that the Veteran’s bilateral upper and lower extremity neuropathy are secondary to herbicide exposure and/or his diabetes mellitus type II. As such, these issues are inextricably intertwined with the Veteran’s claim based on Agent Orange exposure and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated). The matters are REMANDED for the following action: 1. Submit research requests to the JSRRC, Air Force Historical Center, and any other appropriate record repository the RO deems necessary based on the information included in the claims file and any updated information provided by the Veteran. The RO must forward the Veteran’s statements regarding the Veteran’s alleged herbicide exposure at Eglin AFB, Florida, as well as copies of the Veteran’s service personnel records and any other relevant evidence to the above listed federal record repositories, in order to verify whether the Veteran was exposed to herbicides while stationed in Eglin, Florida from December 10, 1966 through August 16, 1967. Specifically, instruct the research repositories to address the contentions that working as maintenance on the flight line 3214 OMS (Ordinance Maintenance Squad) exposed the Veteran to herbicides. The RO must inform the JSRRC, Air Force Historical Center, and any other appropriate record repository that if there are no records to confirm or deny the Veteran’s depiction of the events, the record repository must provide written documentation to the RO to that effect. 2. Obtain relevant Social Security Administration (SSA) records involving the Veteran, to include all medical records underlying SSA determinations. 3. Schedule the Veteran for a VA audiological examination, with a new VA examiner, to determine the nature and etiology of the Veteran’s bilateral hearing loss. The claims file to include a copy of this REMAND must be made available to the examiner for review. All indicated tests should be performed. The examiner should specifically opine as to: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset during service, or is otherwise etiologically related to the Veteran’s active duty, to include any incident thereof.  The Board notes that the Veteran was not diagnosed with hearing loss at separation or during active duty, but that is not dispositive on the issue of whether current hearing loss is related to acoustic trauma in active service. When formulating his or her opinion, the examiner should specifically comment on the threshold shift in hearing acuity from enlistment to and separation. The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions.   All findings and conclusions should be supported with complete rationale, and review of the file should be noted in the report.   4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s diabetes mellitus. The claims file to include a copy of this REMAND must be made available to the examiner for review. All indicated tests should be performed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus was incurred in service or is related to any event in service, to include as due to exposure to jet-fuel. The Board notes that service treatment records are to be taken into consideration and reviewed by the examiner, but that the absence of documented treatment in service is not fatal to a service connection claim.  All findings and conclusions should be supported with complete rationale, and review of the file should be noted in the report.   5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s bilateral upper and lower neuropathy. The claims file to include a copy of this REMAND must be made available to the examiner for review. All indicated tests should be performed. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral upper and lower neuropathy was incurred in service or is related to any event in service. The examiner must provide an opinion as to whether it is at least as likely as not that the bilateral upper and lower neuropathy was proximately caused or aggravated by the Veteran’s diabetes mellitus.  (Continued on the next page)   The Board notes that service treatment records are to be taken into consideration and reviewed by the examiner, but that the absence of documented treatment in service is not fatal to a service connection claim.     All findings and conclusions should be supported with complete rationale, and review of the file should be noted in the report. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.