Citation Nr: 21016127 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 20-26 086 DATE: March 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for a spine disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded. Entitlement to service connection for a skin disability of the back, to include chloracne, is remanded. Entitlement to service connection for a skin disability of the ears is remanded. FINDING OF FACT The Veteran’s tinnitus had its onset during service and continued since that time. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1964 to July 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires competent 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 disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is related to service. He testified, credibly, that symptoms described as buzzing in the ears began during service and continued since such time. He testified that during service, he was involved in the torpedo squadrons and his ear plugs fell out during explosions and while surrounded by explosives. He stated that he did not have noise exposure following service. See December 2020 Hearing Transcript. As he is competent to describe the symptoms of tinnitus, and tinnitus is a disease which is capable of self-diagnosis, the Board finds that he has tinnitus and the first element is met. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). His tinnitus has also been formally diagnosed upon examination. See October 2015 VA examination. As he has a current disability and his duty of service supports that he suffered acoustic trauma, the remaining question is whether his tinnitus is related to his service, to include noise exposure. October 2015 VA examiner opined that it is less likely than not that the Veteran’s tinnitus is due to military service, to include military noise exposure. The Veteran reported he had ringing in both ears for approximately 30 and noticed fluctuating difficulty hearing for 35-40 years. The examiner noted that noise exposure included history as a Navy SEAL in Vietnam, wherein he was involved in combat and precision fire around explosive and weapons fire. However, the Veteran testified that buzzing in his ears began during service and has continued since such time. The Board concludes that the Veteran’s competent and credible testimony regarding onset of tinnitus in service and continuity of symptomatology since that time is more probative and significant in warranting service connection. Therefore, resolving doubt in the Veteran’s favor, the claim is granted on this basis. 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS FOR REMAND 2. Entitlement to service connection for hearing loss is remanded. The Veteran contends that has hearing loss that is related to service. He testified that during service, he was involved in the torpedo squadrons and his ear plugs fell out during explosions and while surrounded by explosives. See December 2020 Hearing Transcript. VA examination, the examiner opined that the Veteran’s bilateral hearing loss is not at least as likely caused by or a result of an event in military service. The examiner stated that the Veteran’s hearing was within normal limits in the right ear upon enlistment to service with no evidence of a threshold shift by separation. Further, the examiner stated that the Veteran’s hearing remains within normal limits 47 years later. The examiner stated that military noise exposure and events in the military have not caused hearing loss. The Board regrets the further delay but finds that a remand is necessary in this appeal to afford the Veteran the greatest possible consideration. Here, the VA examination of record is inadequate because it relied on a lack of threshold shift during service and did not adequately address whether noise exposure in service or other symptomatology in service could have led to the Veteran developing hearing loss during the pendency of the appeal or within one year following service. Additionally, the opinion discusses only the right ear and does so without much rationale, other than a lack of threshold shift during service. Therefore, a remand is required to obtain an adequate examination and opinion that discusses both the right and left ear hearing loss and the relationship to significant noise exposure. 3. Entitlement to service connection for diabetes mellitus type II as a result of herbicide exposure is remanded. The Veteran contends that he has diabetes mellitus, type II, that is related to service. He is currently treated for diabetes. See October 2015 VA examination. The Veteran testified that he served in Danang, Vietnam, onboard the Charles S. Perry DD-697 in January 1966. He further testified that he was on a cavalier 8T839 in March through August of 1966 and was also onboard USS MOS 426, which docked at the pier in Cam Ranh Bay. Additionally, he stated that he was stationed at Camp Carter around 1964 to 1968. In January 2019, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in Procopio v. Wilkie, 913 F.3d 1371, 138081 (Fed. Cir. 2019) (en banc), where the Federal Circuit held that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’” are entitled to service connection under 38 U.S.C. § 1116. Subsequently, legislation was enacted that added 38 U.S.C. § 1116A , providing in part for a presumption of herbicide agent exposure for veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Offshore is defined as being in a location not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting several specific latitude and longitude points. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23 (June 25, 2019). The Board notes that although the RO has properly conducted research as to whether the Veteran was exposed to herbicides in Vietnam, the RO has not conducted research as to whether the Veteran’s service included any presence within the 12 nautical mile territorial sea of the Republic of Vietnam. The Board finds that it is unable to make a fully informed decision as to whether the Veteran served in the 12 nautical mile territorial sea in the Republic of Vietnam or any similar area identified in the Blue Water Navy Vietnam Veterans Act. Accordingly, a remand is warranted for further factual development. 4. Entitlement to service connection for a skin disability of the back is remanded. The Veteran contends that he has a skin disability that is related to service. The Veteran testified that he experiences rashes on his back and has taken medication for such condition since service. He testified that after serving near many chemicals, he started getting many sores on his back and right shoulder. He further testified that he continues to have tumors, which were incurred in service. The duty to assist extends to getting a VA examination with opinion to address the evidence and contentions. 5. Entitlement to service connection for skin disability of the ears is remanded. The Veteran contends that he has a skin disability of the ears that are related to service. He testified that he started feeling discomfort or pain in his ear, the otitis externa, during service and that his earplugs would fall out during combat in rapid fire around explosives and chemical weapons. He further testified that he served near mine fields and during cold weather. The issue at the hearing was clarified as currently resulting in a skin disability of the ears. The duty to assist extends to getting a VA examination with opinion to address the evidence and contentions. 6. Entitlement to service connection for a spine disability is remanded. The Veteran contends that he has a spine disability that is related to service. He testified that he would be pinned down during combat and that has resulted in many ailments. October 2015 VA examination noted that he has a history of thoracic surgery in 1994 and has arthritis in his spine and neck. The duty to assist extends to getting a VA examination with opinion to address the evidence and contentions. 7. Entitlement to service connection for acquired psychiatric disorder, to include depression and anxiety, with associated sleep disorder is remanded. The Veteran contends that he has major depressive disorder and anxiety, with associated sleep disorder, that is related to service. The Veteran testified that symptoms of depression started while in service and there was an informal diagnosis prior to discharge, although formally diagnosed afterward. He further testified that top secret operations and heading to war put additional stress on him, and fear of fighting in combat caused depression with associated sleep depravation. He testified that during service, he sometimes we went without sleep for up to three days. The Court of Appeals for Veteran Claims (Court) has held that a claim for service connection for a psychiatric disorder encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1(2009). The Board will broaden the claim under Clemons and consider whether a broader claim for service connection is warranted for an acquired psychiatric disorder to include anxiety and depression. The duty to assist extends to getting a VA examination with opinion to address the evidence and contentions based on the broadened claim. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completing directive #1, schedule the Veteran for an examination with an audiologist for an opinion to determine the nature and etiology of his bilateral hearing loss. Service connection is in effect for tinnitus. The examiner should opine on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss is related to his service, to include noise exposure? The examiner should address the Veteran’s reports of in-service noise exposure, to include service near explosions and explosive devices. The examiner should discuss both the right and left ear and is reminded that a lack of threshold shift, by itself, is insufficient rationale. 3. Conduct appropriate development to determine whether the Veteran had active service within the 12 nautical miles of the Republic of Vietnam, or any similar area identified in the Blue Water Navy Vietnam Veterans Act of 2019. If the development fails to provide evidence that allows for the granting of the presumption, document this determination appropriately. 4. Following development requested in directive #3, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his skin disability of the back and ears. The examiner should review the claims file then opine on the following: Is it at least as likely as not (50 percent or greater probability that the Veteran’s skin disability of the back and ears is related to service, to include any conceded herbicide exposure? 5. After completing directive #1, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his spine disability. The examiner should review the claims file then opine on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s spine condition is related to service? 6. After completing directive #1, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The examiner should review the claims file then opine on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder, to include depression and anxiety is related to service? Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, Associate 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.