Citation Nr: 21014345 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 20-23 868 DATE: March 11, 2021 ORDER Service connection for tinnitus is denied. Service connection for diabetes mellitus, type II (diabetes) is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for coronary artery disease (CAD) is denied. Service connection for residuals of a cerebrovascular accident (CVA) is denied. FINDINGS OF FACT 1. Tinnitus did not originate in service or until years thereafter, and it is not otherwise etiologically related to service. 2. Diabetes did not originate in service or until years thereafter, and it is not otherwise etiologically related to service. 3. Peripheral neuropathy of the left lower extremity did not originate in service or until years thereafter, is not otherwise etiologically related to service, and is not caused or aggravated by a service-connected disability. 4. Peripheral neuropathy of the right lower extremity did not originate in service or until years thereafter, is not otherwise etiologically related to service, and is not caused or aggravated by a service-connected disability. 5. CAD did not originate in service or until years thereafter, is not otherwise etiologically related to service, and is not caused or aggravated by a service-connected disability. 6. Residuals of a CVA did not originate in service or until years thereafter, is not otherwise etiologically related to service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. 2. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. 3. The criteria for service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. 4. The criteria for service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. 5. The criteria for service connection for CAD have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. 6. The criteria for service connection for residuals of a CVA have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision. The Veteran participated in a videoconference hearing before the undersigned in February 2021. The transcript has been associated with the record. 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; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Diabetes, peripheral neuropathy, CAD, and tinnitus are chronic diseases for which service connection may be established based on a continuity of symptoms since the veteran’s discharge from service. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service incurrence will be presumed for such chronic diseases by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, VA considers certain diseases associated with exposure to certain herbicide agents are considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Type II diabetes mellitus, ischemic heart disease, and early-onset peripheral neuropathy have been presumptively associated with herbicide exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service connected disease or injury.   38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183 (1993).  To establish service connection on a secondary basis, there must be evidence of a current disability, a service connected disability, and medical evidence of a nexus between the service connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509 (1998). Service Connection for Tinnitus The Veteran claims that he has tinnitus as the direct result of his in-service exposure to loud noises. The Veteran’s service treatment records do not show any complaints of or treatment for symptoms associated with tinnitus. The Veteran’s August 1967 separation examination indicated that the Veteran’s ears and hearing were normal. Following the Veteran’s separation from service, in May 2011 and November 2011, clinicians noted that the Veteran did not have tinnitus. The Veteran filed his claim for benefits in December 2017. It was at that time that a clinician observed that the Veteran experienced chronic tinnitus. There was no discussion as to the onset of the tinnitus. In March 2018, however, the Veteran denied experiencing symptoms of tinnitus. The Veteran failed to appear for an audiological examination scheduled to occur in April 2018. During his February 2021 hearing before the undersigned, the Veteran claimed that he was exposed to loud noises during service, including the sound of the firing of missiles. The Veteran stated that he had first noticed ringing in his ears after his separation from service, and he had been diagnosed with tinnitus in either the late 1960s or 1970. The Veteran could not recall if he had experienced symptoms of tinnitus during service, but his symptoms had been “constant forever”. The Veteran denied any post-service exposure to loud noises. Turning to an analysis of this evidence, the Board notes that as a “subjective” ailment, the existence of tinnitus is generally determined by whether or not the veteran claims to experience it. See Charles v. Principi, 16 Vet. App. 370 (2002). In this case, the Veteran has indeed claimed to have experienced symptoms of tinnitus. The Veteran has additionally alleged that he was exposed to loud noises during service. Thus, the first two elements of Shedden are met. With both the presence of a current disability and an in-service incident, the remaining question is whether the evidence supports a connection between the Veteran’s tinnitus and his in-service experiences. To that end, the Board observes that the Veteran failed to appear for a scheduled audiological examination, and there are otherwise no medical opinions linking the Veteran’s tinnitus to his military service. When, as here, a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, VA must decide the claim based on the existing evidence of record. 38 C.F.R. § 3.655(b). To the extent that the Veteran believes that his tinnitus is related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing readily-observable symptoms such as ringing in his ears. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the issue of causation of tinnitus is a medical determination outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions suggesting that the Veteran’s tinnitus is related to his service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by a medical professional and concerned the functioning of the Veteran’s nervous system, something that is not readily perceivable by the use of a person’s senses. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his tinnitus, and it finds that he has not done so. The record contains no complaints of tinnitus until the Veteran filed his current claim for benefits in December 2017, approximately 50 years after he separated from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran’s entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). Furthermore, the Veteran denied experiencing tinnitus at the time of his separation from service and on multiple occasions in 2011, which is inconsistent with a finding that the Veteran had an onset of tinnitus in service and experienced symptoms continuously after his separation from service. Thus, the Board finds that the weight of the evidence does not support a finding of continuous symptoms since active duty. The medical nexus element cannot be met via a continuity of symptomatology. Furthermore, the Board finds that tinnitus was not shown within one year following separation from service, or for many years after service. Therefore, presumptive service connection is not warranted. The Board concludes that the weight of the evidence is against granting service connection for tinnitus, and the claim is denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Diabetes, Peripheral Neuropathy, CAD, and Residuals of a CVA The Veteran claims that he has diabetes and CAD as the direct result of his in-service exposure to herbicides and other toxic agents. The Veteran claims that he has peripheral neuropathy of the lower extremities and residuals of a CVA as the secondary result of his diabetes and/or heart disability. Service personnel records show that the Veteran served as a construction machine operator with Amphibious Construction Battalion 2 in Little Creek, Virginia. The Veteran served aboard the U.S.S. Hermitage from November 1966 to February 1967, and the U.S.S. Fort Snelling from February 1967 to May 1967. The Veteran’s August 1967 separation examination indicated that his heart, chest, and endocrine system were all normal. The Veteran’s service personnel records and treatment records do not show service in Puerto Rico. Following his separation from service, in December 2011, a clinician noted that the Veteran’s bloodwork placed him close to a clinical diagnosis with diabetes. The Veteran filed his claim for benefits in December 2017. In July 2018, the Veteran claimed to have been exposed to herbicide agents while serving at Camp Garcia, in Vieques Island, Puerto Rico noting that the area around his tent was free of all vegetation. The Veteran stated that other sailors told him that they had offloaded Agent Orange from naval ships, and the Veteran thought that he had consumed contaminated water when bathing and drinking. In April 2020, a review of an inventory of herbicide operations maintained by the Department of Defense (DoD) showed that multiple small-scale isolated herbicide tests occurred on Puerto Rico between 1963 and 1967, mainly in remote areas of the Luquillo National Forest area, including Mayaguez, Maricao, Galataca, Guanica, Toro Negro, El Verde, and Jimenez. The DoD review indicated that there was no evidence of any herbicide agent testing on Vieques Island, nor was there evidence of storage or other general use of Agent Orange anywhere else in Puerto Rico. The DoD review stated that Puerto Rico was not in the Agent Orange shipping line, which went directly from Gulfport, Mississippi, or Mobile, Alabama, to South Vietnam via commercial shipping. Naval warships were not used to transport Agent Orange. During his February 2021 hearing before the undersigned, the Veteran alleged that he was exposed to herbicide agents and “toxic metals” while serving at Vieques Island. He recalled that he offloaded containers and drums during service without knowing their contents, and that he might have slept with Agent Orange. He further indicated that he passed out in a hospital tent for four or five days after offloading pallets and was informed that he had eaten poison food. The Veteran’s representative stated that he did not know what missiles flew over the Veteran’s head, but he assumed/speculated there were “some fumes or residuals of whatever flew over him that it might have landed on him”. With that said, the Veteran also indicated that he did not consider the possibility of his in-service exposure to herbicides and other toxins until a VA doctor “started it” by telling him that he had been exposed to herbicides and had “all the symptoms” of such contact. The Veteran denied experiencing symptoms of diabetes, peripheral neuropathy, or heart problems during service. The Veteran instead stated that he first began experiencing heart problems in approximately 2000. Turning to an analysis of these facts, the Veteran has current diagnoses with diabetes, peripheral neuropathy, CAD, and residuals of a CVA. With that said, the weight of the evidence does not support the Veteran’s claim that he was exposed to herbicide agents and other toxins while serving at Camp Garcia on Vieques Island in Puerto Rico. As an initial matter, the Veteran’s personnel and medical records do not show that the Veteran served in Puerto Rico at all. Even if, however, the Board were to find that the Veteran served in Puerto Rico, the weight of the evidence, including the April 2020 review of herbicide operations maintained by the DoD, is against a finding that the Veteran was exposed to herbicide agents as the result of such service. Thus, in this case, there is no competent evidence of actual in-service exposure to herbicides or other toxins. The Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has not asserted that he has first-hand knowledge establishing in-service exposure to the claimed herbicides and toxins. Instead, the Veteran has broadly identified his belief that he could have come into contact with such substances during service. Additionally, the Veteran has stated, for example during his February 2021 hearing, that he only began to suspect that he had been so exposed during service after a “VA doctor started it”. The Veteran has stated that he offloaded containers without knowing what they contained, he might have slept with agent orange, and he might have experienced “some fumes or residuals of whatever flew over him that it might have landed on him”. These beliefs, which are not only unsupported by any supporting evidence, but are also contradicted by the April 2020 DoD review of herbicide use in Puerto Rico, are insufficient to establish the Veteran’s claimed in-service exposure to toxins and other herbicides. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran experienced an in-service event or injury giving rise to his current disabilities. Additionally, the Veteran has not alleged that he experienced symptoms or manifestations of diabetes, peripheral neuropathy, or CAD on a chronic or continuous basis since his separation from service. Therefore, entitlement to service connection for such disabilities on a direct or presumptive basis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.303 (a), (b), 3.309(a). The Veteran claims that he has peripheral neuropathy and residuals of a CVA as the result of his diabetes. The Board has denied the Veteran’s claim for service connection for diabetes. Without a relevant service connected disability, service connection for peripheral neuropathy and residuals of a CVA, claimed as secondary to the Veteran’s diabetes mellitus, is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.