Citation Nr: 21022614
Decision Date: 04/16/21	Archive Date: 04/16/21

DOCKET NO. 14-39 779
DATE: April 16, 2021

ORDER

Service connection for bilateral hearing loss disability is granted. 

Service connection for a headache disorder is granted.

Service connection for a sleep disorder (to include sleep apnea and insomnia) is denied. 

Service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure is denied.

Service connection for RIGHT lower extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure, is denied.

Service connection for LEFT lower extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure, is denied.

Service connection for RIGHT upper extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure, is denied.

Service connection for LEFT upper extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure, is denied.

Service connection for ischemic heart disease, to include as due to herbicide (Agent Orange) exposure, is denied.

REMANDED

Service connection for bilateral carpal tunnel syndrome is remanded.

Service connection for a thoracolumbar spine disorder is remanded.

Service connection for a cervical spine (neck) disorder is remanded.

Service connection for a RIGHT knee disorder is remanded.

Service connection for a LEFT knee disorder is remanded.

FINDINGS OF FACT

1. The Veteran has current bilateral ear hearing loss disability for VA compensation purposes.

2. The Veteran’s bilateral hearing loss disability is the result of hazardous noise exposure from small arms fire, rifle training, and Howitzer artillery in his military occupational specialty (MOS) as a cannoneer / gunner during periods of ACDUTRA and INACDUTRA training in the Army Reserve from 1957 to 1961.  

3. The Veteran has a headache disorder that began during his active service in the Air Force from 1961 to 1965.  

4. The Veteran’s sleep apnea and insomnia disorders did not manifest during either his service in the Army Reserve from 1957 to 1961 or during his service in the Air Force from 1961 to 1965.  Furthermore, these sleep disorders are not otherwise related to his service in the Army Reserve or U.S. Air Force.

5. The Veteran never served in the Republic of Vietnam (either on the landmass, inland waterways, or in the territorial sea extending 12 nautical miles from the shores of that nation).  The evidence of record also does not establish that he otherwise had exposure to Agent Orange or other herbicide agents at Okinawa Air Force Base in Japan from 1963 to 1965.  

6. The Veteran’s type II diabetes mellitus, ischemic heart disease, and diabetic peripheral neuropathy to all four extremities did not manifest in service or within one year thereafter and are not related to his active service, including his alleged herbicide exposure.   

CONCLUSIONS OF LAW

1. The criteria have been met for service connection for bilateral hearing loss disability.  38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.307, 3.309, 3.385.

2. The criteria have been met for direct service connection for a headache disorder.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a), (d).

3. The criteria have not been met for service connection for a sleep disorder.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria have not been met for service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313.

5. The criteria have not been met for service connection for RIGHT lower extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313.

6. The criteria have not been met for service connection for LEFT lower extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313.

7. The criteria have not been met for service connection for RIGHT upper extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313.

8. The criteria have not been met for service connection for LEFT upper extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313.

9. The criteria have not been met for service connection for ischemic heart disease, to include as due to herbicide (Agent Orange) exposure.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the U.S. Air Force from April 1961 to March 1965.  Prior to this, the Veteran served in the Army Reserve from January 1957 to April 1961, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).  

This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from August 2010 and June 2013 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

This appeal has been advanced on the Board’s docket.  38 U.S.C. § 7107(b) (effective February 19, 2019); 38 C.F.R. § 20.800(c) (2020).  

The Veteran requested a Board videoconference hearing before a Veterans Law Judge in his November 2014 VA Form 9.  However, he cancelled that request in December 2017.  Therefore, the Board hearing request is considered withdrawn.  See 38 C.F.R. § 20.704(e) (2020). 

In April 2018, the Board remanded the appeal for further development.  This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s remand order for the majority of the issues on appeal.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  However, as discussed further below, the Board will once again remand several of the issues on appeal for further development.  This new remand is because the VA examinations and medical opinions that addressed the etiology of those particular issues were not fully adequate. 

I.  VA’s Duty to Notify and Assist

VA’s duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by VA letters sent to Veteran, dated in March 2010, March 2012, January 2013, December 2018, and November 2020.  See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2019).  These letters advised the Veteran of the information and evidence necessary to substantiate his various service connection claims on appeal.  

In any event, in the decision below, the Board has granted the Veteran’s claims for service connection for headaches and bilateral hearing loss.  Therefore, the benefits sought on appeal have been granted in full for these particular issues.  Accordingly, regardless of whether the notice and assistance requirements have been met, no harm or prejudice to the Veteran has resulted for these particular issues.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

For the various service connection issues being denied in the present decision, subsequent to the ameliorative April 2018 Board remand, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that the Board has an obligation to read filings in a liberal manner, but that obligation does not require the Board to “search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361-62 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 

Moreover, in a January 2019 response, the Social Security Administration (SSA) indicated that no SSA medical records existed for the Veteran.  

With regard to the duty to assist, VA is required to make reasonable efforts to obtain relevant private medical records.  38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1).  On this issue, at the February 2015 VA diabetes mellitus examination, the Veteran reported that he was treated with stents for his heart 3-4 years prior.  In addition, according to an April 2012 Crosspoint Medical Clinic record, the Veteran reported undergoing a sleep apnea study in November 2010.  It appears private providers were involved in both instances.  

It follows that in the previous April 2018 Board remand, the Board instructed the AOJ to attempt to obtain these additional private treatment records pertinent to the heart and sleep apnea service connection issues on appeal.  The AOJ followed the Board’s instructions and sent the Veteran a December 2018 development letter asking that he complete and return enclosed medical authorizations (VA Forms 21-4142 and 21-4142a).  The purpose was for VA to obtain any outstanding private treatment records from the above providers, if the Veteran authorized VA to secure them.  Under 38 U.S.C. § 5103A(b)(1), the claimant must furnish sufficient information to identify and locate such private records.  That is, a claimant is required to cooperate fully with VA’s efforts and, if necessary, authorize the release of existing records in an acceptable form.  38 C.F.R. § 3.159(c)(1).  Here, the Veteran failed to complete and return the enclosed medical authorizations (VA Forms 21-4142 and 21-4142a) so that VA could secure any outstanding private treatment records from the above providers.  On this point, the Court recently reaffirmed that the duty to assist is not a one-way street.  Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019).  In short, with regard to the above private treatment records, neither the Veteran nor his representative cooperated with VA’s attempts to secure this additional evidence.  As such, no further effort on VA’s part is warranted to secure these private medical records. 

The Board acknowledges that in a February 2008 letter to the Veteran, the National Personnel Records Center (NPRC) concluded that the Veteran’s Army Reserve records dated from 1957 to 1961 appear to have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri.  In any event, the Board acknowledges the Veteran is credible when he states that he served in the Army Reserve from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas.  He had artillery training at Fort Sill, Oklahoma and at Fort Polk, Louisiana during this timeframe.  However, any Army Reserve treatment or personnel records from this period would have been sent to the NPRC, which already provided a negative response.  Moreover, there is also no allegation by the Veteran or any other evidence of record that he was treated for any of the disabilities on appeal that are being denied here, during his Army Reserve service from 1957 to 1961.  In fact, on several occasions, the Veteran has reiterated that he did not receive in-service treatment for the issues on appeal that are being denied in the current Board decision.  See 38 C.F.R. § 20.1102 (2020) (an error or defect in a Board decision that does not affect the merits of the issue or substantive rights of the appellant will be considered harmless).  VA is not required to search for further evidence which, even if obtained, would make no difference in the result.  Allday v. Brown, 7 Vet. App. 517, 526 (1995).  Thus, there is no reasonable basis for further attempts to secure these Army Reserve records dated from 1957 to 1961, as such delay would be futile and pointless at this juncture.  See 38 C.F.R. § 3.159(c)(2) and (3).  

The AOJ also attempted to confirm the Veteran’s alleged herbicide agent exposure on a factual basis, while the Veteran was stationed in Okinawa Air Force Base in Japan from November 1963 to March 1965, or during alleged temporary duty (TDY) assignments in Vietnam during active service in the early 1960s.  However, the AOJ received negative responses for any confirmation of herbicide agent exposure in Japan or of ever having traveled on TDY assignments to Vietnam from the following: the Veteran’s 1961 to 1965 service personnel records (SPRs), an April 2002 NPRC PIES response, a May 2013 NPRC PIES response, a September 2014 Formal Finding Memorandum from the U.S. Army Joint Services and Research Center (JSRRC) coordinator, a January 25, 2019 E-mail response from VA’s Compensation Service, and a January 25, 2019 VA Memorandum concluding the Veteran failed to respond to VA’s recent letter for more detail regarding his alleged Agent Orange Exposure in Vietnam.  Additional and more specific findings of the NPRC and JSRRC are discussed in broader detail below.

In summary, the Board is satisfied that VA has provided all assistance required by the VCAA, for the service connection issues being denied in the present Board decision.  38 U.S.C. § 5103A. 

II.  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, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) the existence of 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 disease or injury incurred or aggravated during service — the “nexus” requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C. § 1154(a).  Thus, there is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record.  Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020).  Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet.  See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007).  The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection.  Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

	A.  Bilateral Hearing Loss

The Veteran contends that he had hazardous noise exposure during his service in the Army Reserve from 1957 to 1961 from small arms fire and rifle training and Howitzer artillery exposure, due to his military occupational specialty (MOS) as a cannoneer / gunner.  Oftentimes he did not wear hearing protection, except when on the firing range.  He says that during the blasts from the Howitzer artillery, he experienced tinnitus.  He has also asserted that he noticed symptoms of hearing loss during active duty, gradually worsening over the years.  Post-service, as a civilian, he has denied any work-related or recreational noise exposure from 1965 to 2021.  See January 2010 Application for Compensation (VA Form 21-526); April 2012 spouse statement; November 2012 Veteran statement; April 2012 letter to congressman and April 2012 Veteran statement; June 2013 NOD.

The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  But according to VA standards, impaired hearing will only be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  

In the present case, the Veteran’s sensorineural hearing loss (an “organic disease of the nervous system”) is considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated “chronic disease” in service (or within the presumptive period under § 3.307), or “continuity of symptoms” of such a disease after service, the disease shall be presumed to have been incurred in service.  Walker, 708 F.3d 1335-1337.  Service connection for certain enumerated diseases, such as sensorineural hearing loss (organic disease of the nervous system), may be also be established on a presumptive basis by showing that it manifested itself 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; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

As discussed above, the Veteran’s hearing loss claim stems from hazardous noise exposure that occurred during periods of ACDUTRA and INACDUTRA with the Army Reserve from 1957 to 1961.  His ACDUTRA service included an initial period of “boot camp” training in 1957.  Thereafter, his ACDUTRA service consisted of annual two-week trainings each year from 1957 to 1961.  His INACDUTRA service consisted of the regular, once-a-month weekend drills attended by Army Reserve soldiers from 1957 to 1961.  He maintains that his job as a cannoneer during his periods of ACDUTRA and INACDUTRA regularly exposed him to small arms fire and rifle training and Howitzer artillery exposure in training exercises.  

A “veteran” is defined as “a person who served in the ‘active’ military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.”  38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).  

The term “active military, naval, or air service” includes active duty or any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA.  The term “active military, naval, or air service” also includes  any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA.  38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a).  VA's General Counsel has held that it was the intention of Congress when it defined active service in 38 U.S.C. § 101(24) to exclude a period of INACDUTRA during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process.  See VAOPGCPREC 86-90 (July 18, 1990).

ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state.  38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c).  INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state.  38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d).  Active service also includes authorized travel to or from such duty or service.  38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e).

In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, (such as the present case), there must be evidence that the claimant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA.  See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)).  In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the claimant would not qualify as a “veteran” for that period of ACDUTRA or INACDUTRA service alone.  38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324.  

Upon review of the evidence of record, the Board grants the appeal for service connection for bilateral hearing loss disability.  

The award of service connection for bilateral hearing loss is based on the following assessments:

First, there is clear proof of a current disability for bilateral hearing loss.  See 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997).  Specifically, a February 2019 VA audiology examination revealed bilateral ear sensorineural hearing loss disability according to the clear, established requirements of 38 C.F.R. § 3.385.  Thus, the existence of a current disability is undisputed for bilateral hearing loss.

Second, as to the second requirement of in-service incurrence, Army Reserve treatment and personnel records dated from 1957 to 1961 appear to have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri.  However, the Veteran is credible in describing noise exposure two weeks per year during ACDUTRA training with the 807th Field Artillery Battalion in Temple, Texas.  He also had artillery training at Fort Sill, Oklahoma and at Fort Polk, Louisiana during this timeframe from 1957 to 1961.  A March 2012 buddy statement from a fellow soldier confirmed that he and the Veteran were exposed to 105mm and 155mm Howitzers while stationed at Fort Sill, Oklahoma from 1957 to 1961 during ACDUTRA training.  His buddy reported the Howitzers did a lot of shaking and the cockpit was very small.  These were large guns and the recoil was tremendous and created a very loud noise which he believed caused problems with the Veteran’s ears.

This is significant because for purposes of determining whether an individual was disabled or died from an injury incurred or aggravated in line of duty during a period of INACDUTRA, the word “injury” refers to the results of an external trauma, rather than a degenerative process.  Importantly, the term “injury” has been interpreted to include sexual assault for purposes of entitlement to service connection for PTSD, a vaccination where the individual suffers a disabling condition as a result of the vaccination, and acoustic trauma.  See VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 8-2001 (Feb. 26, 2001) (emphasis added).

Under VA protocol, service connection for hearing loss and / or tinnitus can be established for INACDUTRA if either condition can be linked to an “injury” during INACDUTRA as shown by the nature of service, the claimant’s MOS, lay evidence, or other competent evidence.  For purposes of hearing loss or tinnitus during INACDUTRA, the MOS or other evidence establishing noise exposure serves as the “injury” during INACDUTRA required for service connection.  The adjudicator should review the entire evidentiary record for noise exposure to ascertain both in-service and post-service exposure to hazardous noise and acoustic trauma.  The National Guard or Reserve service records should also be reviewed for auditory threshold shifts (i.e., a decrease in auditory acuity) during National Guard or Reserve service, although these audiograms do not need to meet the hearing loss criteria under 38 C.F.R. § 3.385 during National Guard or Reserve service.  

Third, as to the second requirement of in-service incurrence, the Department of Defense’s Duty MOS Noise Exposure Listing indicates that the Veteran’s in-service MOS as cannoneer / gunner in the Army Reserve involved a “high” probability of noise exposure during service.  This would include gunfire and artillery noise.  On this basis, there is a qualifying event, injury, or disease that had its onset during the Veteran’s Army Reserve service.  Therefore, hazardous noise exposure during his periods of ACDUTRA and INACDUTRA with the Army Reserve from 1957 to 1961 is consistent with the circumstances of the Veteran’s duties.  See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).  This evidence confirms hazardous noise exposure during his Army Reserve service.   

Fourth, as to the second requirement of in-service incurrence, service treatment records (STRs) dated from 1961 to 1964 during the Veteran’s latter service in the Air Force are negative for any complaint, treatment, or diagnosis of bilateral hearing loss disability under § 3.385.  All of his in-service audiograms fail to demonstrate any bilateral hearing loss disability under § 3.385.  The Veteran’s STRs also fail to reveal any significant auditory shifts in the frequencies of 500 to 4000 Hertz.  Also, the Department of Defense’s Duty MOS Noise Exposure Listing indicates that an MOS as a clerk typist in the Air Force from 1961 to 1965 involved a “low” probability of noise exposure during his subsequent Air Force service.  

Regardless, the Board emphasizes that to establish service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  That is, a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service.  Hensley v. Brown, 5 Vet. App. 155, 164 (1993).  See also 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).  Therefore, the lack of evidence of bilateral hearing loss disability per § 3.385 or any hearing loss complaints during active service or within one year of service is not fatal to the Veteran’s claim; rather, it is merely one factor to be considered.   

Fifth, after the Veteran’s separation from service in 1965, there was no demonstrable hazardous noise exposure identified post-service by any intercurrent recreational and occupational activities in the years from 1965 to 2021.  See 38 C.F.R. § 3.303(b).  At the February 2019 VA audiology examination, the Veteran denied occupational noise exposure after the service as a mail carrier, photographer, and guitar musician post-service.  There was also no recreational noise exposure and no familial history of hearing loss in the Veteran’s family.  The Veteran has competently and credibly testified that he began noticing his bilateral hearing loss and tinnitus during and after his separation from active duty in 1965.  See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09.  There is no requirement that all factual questions be resolved by reliance on direct, rather than circumstantial, evidence.  Although an etiological relationship has not been demonstrated through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection, particularly where, as here, the lay evidence of record is sufficient to satisfy the final nexus prong.  Davidson, 581 F.3d at 1316.  

Sixth, post-service, it is significant to the Board’s present adjudication of bilateral hearing loss that the AOJ in a January 2021 rating decision already granted the Veteran service connection for tinnitus.  This award was based on the same confirmed in-service hazardous noise exposure for the Veteran as a cannoneer / gunner in the Army Reserve during periods of ACDUTRA and INACDUTRA from 1957 to 1961.  In fact, the February 2019 VA audiology examiner proffered a favorable nexus opinion for tinnitus.   

Seventh, the Board is cognizant that the February 2019 VA audiology examiner proffered a negative medical opinion against the bilateral hearing loss claim.  Yet the same VA audiology examiner proffered a positive medical opinion for tinnitus, based on the same hazardous noise exposure during Army Reserve service from 1957 to 1961.  Moreover, the unfavorable VA opinion against hearing loss is somewhat flawed.  The VA examiner surmised that this Veteran’s particular bilateral, gradually sloping sensorineural hearing loss “is not a typical noise-induced audiometric configuration.”  Yet the VA examiner offered no explanation for how the Veteran’s hearing loss has developed.  For example, the VA examiner did not assess the Veteran’s hearing loss was presbycusis (the loss of hearing that gradually occurs in most individuals as they grow older).  Therefore, this VA medical opinion is entitled to minimal probative weight.

Eighth, as to the third requirement of a nexus, a May 2012 VA physician note documented a sensation of fullness and ringing in both ears.  This VA physician noted that his tinnitus has worsened lately, but the Veteran’s hearing loss started during his military service.  Although this favorable VA physician opinion has various flaws, it still concluded there was a nexus or link between the Veteran’s current bilateral hearing loss disability and his confirmed hazardous noise exposure during his periods of ACDUTRA and INACDUTRA in the Army Reserve from 1957 to 1961.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  

In making this favorable determination for the Veteran, the Board has considered that evidence is rarely neat and tidy.  Therefore, it is expected that the Board will at times have to construct a complete narrative by filling in gaps with inferences and common sense.  There is no requirement that all factual questions be resolved by reliance on direct, rather than circumstantial, evidence.  The fact finding of the Board in this case is entitled to deference and is not clearly erroneous.  To the extent that the Board made inferences and considered circumstantial evidence in its analysis of the evidence, this type of reasoning is well within the discretion of a fact finder.  Although another fact finder may have declined to make the same inference, that does not mean that the Board in the present case is clearly erroneous.  Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”).  

Accordingly, resolving doubt in the Veteran’s favor, the evidence supports service connection for bilateral hearing loss disability.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The hearing loss claim is granted.  

B.  Headache Disorder

Upon review of the evidence, the Board grants the appeal for service connection for a headache disorder.

STRs dated from 1961 to 1965 document in-service reports of headaches at a 1964 STR eye examination.  Therefore, STRs provide some evidence in support of in-service incurrence for headaches.  See 38 C.F.R. § 3.303(a).  

Post-service, only five months after separation from service, at an August 1965 VA examination, the Veteran reported head problems such as “dizziness.”  An August 1965 VA clinical record also noted complaints of head problems described as “dizziness.”  At a latter April 2012 letter to congressman and April 2012 Veteran statement, the Veteran explained that a short time after service in 1965 he had head symptoms such as headaches, dizziness, and tinnitus that he associated with exposure to loud artillery blasts during active duty.  The claims file does not contain any private or VA treatment records dated from 1965 to the 1999.  

However, with regard to a nexus, the Veteran as a layperson competently and credibly describes experiencing intermittent headaches during service and continuing intermittently thereafter after separation from service in 1965.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R. § 3.159(a)(2); Pierce v. Principi, 18 Vet. App. 440 (2004) (lay evidence may can be probative of frequency, prolongation, and severity of headaches).  Moreover, the Veteran is credible in his report of his headaches continuing intermittently after his military service but increasing in frequency and severity over time.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible and probative).  Continuing post-service headaches were documented in a November 2013 VA nursing note, February 2014 VA pain management consult, June 2015 VA addendum note, January 2016 VA nursing note, June 2016 VA nursing note, and a March 2018 VA nursing note.  VA treatment records dated in 2018 and 2019 listed “aching headaches” as a current, active problem. 

The Board emphasizes that to establish a nexus, there is no requirement that a Veteran seek immediate post-service medical treatment for a headache condition after his separation from service in 1965.  The mere absence of medical records does not contradict a Veteran’s statements about his symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  

Accordingly, resolving doubt in the Veteran’s favor, the evidence supports service connection for a headache disorder.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  This claim is granted. 

	C.  Sleep Disorder (Sleep Apnea and Insomnia)

The Veteran generally contends that his current sleep apnea should be service-connected.  See January 2010 Application for Compensation (VA Form 21-526).  He noted that it began in February 2005 according to his January 2010 Application for Compensation.  However, neither the Veteran nor his representative have provided any substantive argument of record as to why his sleep disorder is related to his service in the Army Reserve or Air Force.   

Upon review of the evidence, the Board denies the appeal for service connection for a sleep disorder (sleep apnea and insomnia).   

The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran has a current disability.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).  Here, VA treatment records dated from 2006 to 2019 listed an active problem for the Veteran as “insomnia, unspecified.”  VA treatment records sometimes discussed insomnia in the context of his depression diagnosis.  Additionally, a July 2018 VA sleep medicine consult and VA treatment records dated from 2018 to 2019 have assessed  obstructive sleep apnea for the Veteran, for which he refuses to use a CPAP machine.  He reported snoring, daytime fatigue, and falling asleep in traffic.  Thus, it is undisputed the Veteran has current obstructive sleep apnea and an insomnia disorder as well.  

The remaining question is whether symptomatology supportive of the onset of obstructive sleep apnea or an insomnia disorder first manifested during his period of service in the Army Reserve from 1957 to 1961 or during his period of active duty in the Air Force from 1961 to 1965. 

As to the second requirement of in-service incurrence, Army Reserve treatment and personnel records dated from 1957 to 1961 appear to have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri.  See February 2008 NPRC letter to Veteran.  In any event, there is also no allegation by the Veteran or any other evidence of record that he was treated for sleep apnea or insomnia during his Army Reserve service from 1957 to 1961.  On several occasions, the Veteran has reiterated that he did not receive in-service treatment for the issues on appeal during his Army Reserve service.  Consequently, the fact that the Army Reserve records are missing for the time period from 1957 to 1961 has no relevant impact on the Veteran’s sleep disorder claim.

During his second period of active duty from 1961 to 1965 in the Air Force, STRs are negative for any complaint, treatment, or diagnosis of a sleep apnea disorder, daytime fatigue, insomnia, snoring, apneas, hypopneas, or other possible indicia of sleep apnea.  At an April 1961 STR report of medical history at enlistment examination, the Veteran denied a history of insomnia.  At an April 1961 STR enlistment examination, all systems were normal.  At a February 1965 STR separation examination, all systems were normal except for a penile legion, painful urination, hemorrhoids, hay fever, and eye conjunctivitis.  Thus, the Veteran’s STRs dated from 1961 to 1965 provide no evidence in support of the incurrence of any sleep disorder during active duty.  See 38 C.F.R. § 3.303(a).  

Post-service, within one year of separation from service, an August 1965 VA clinical record only presented complaints of stomach pain and dizziness.  The Veteran had appendicitis, a peptic ulcer, and eye problems in 1965.  But there were no other physical complaints at that time, including any sleep disorder.  When a medical condition or symptom has not been noted in the service records or other medical records, the Board may not consider that as negative evidence unless it is the sort of condition or symptom that would normally be noted or reported.  See Buczynski v. Shinseki, 24 Vet. App. 221, 226–27 (2011).  While cognizant that the absence of contemporaneous records is not an absolute bar to a veteran’s ability to prove his claim, the Veteran’s STRs and immediate post-service treatment records do not suggest the incurrence of any sleep disorder, which weighs heavily against the claim. 

Post-service, with regard to lay evidence, the Veteran is competent as a lay person to report continuing, persistent symptoms of sleep apnea in 1965 onwards after his period of service in the Air Force.  See 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377.  But the Veteran has not done so in the present case.  That is, post-service, there is no lay assertion from the Veteran or any clinical evidence suggesting or demonstrating frequent and persistent symptoms of sleep apnea subsequent to his separation from the Air Force in 1965.  In fact, in his January 2010 Application for Compensation (VA Form 21-526), the Veteran stated that his sleep apnea began in February 2005, which is 40 years after separation from service.  As to insomnia, an insomnia disorder was only listed on the VA active problem list beginning in September 2006.  

In summary, there is no lay assertion from the Veteran or any clinical evidence of record suggesting or demonstrating frequent and persistent symptoms of sleep apnea or insomnia subsequent to his separation from the Air Force in 1965, until many decades later.  The Board is cognizant that to establish a nexus, there is no requirement that a Veteran seek immediate post-service medical treatment for a sleep apnea or insomnia condition.  The mere absence of medical records does not contradict a Veteran’s statements about his symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  But here, as a layperson, the Veteran has not provided any details about his symptom history with regard to sleep apnea or insomnia.  Moreover, a prolonged period without medical or lay complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  In short, this long period without lay or medical evidence of sleep apnea or insomnia weighs against the claim. 

Post-service, as to the third requirement of a nexus, there is no probative medical evidence of a nexus or link between the Veteran’s current obstructive sleep apnea and insomnia disorders and his service periods in the Army Reserve or Air Force from 1957 to 1965.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  Neither the Veteran nor his representative has submitted any favorable nexus opinion for sleep apnea.  

Moreover, as to the third requirement of a nexus, in various lay submissions and reported histories to VA medical providers, the Veteran proffered substantive arguments on other service connection claims on appeal.  But in contrast, both the Veteran and his representative have neglected to proffer any substantive factual or legal arguments or a request for further development for the service connection for a sleep disorder issue on appeal.  A claimant cannot remain passive if he has relevant information in favor of his claim.  See Wamhoff v. Brown, 8 Vet. App. 517 (1996).

Accordingly, the preponderance of the evidence is against the Veteran’s service connection claim for a sleep disorder (sleep apnea and insomnia).  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

D.  Type II Diabetes Mellitus, Ischemic Heart Disease, and Peripheral Neuropathy in Upper and Lower Extremities

The Veteran contends that his current type II diabetes mellitus, ischemic heart disease, and peripheral neuropathy to all four extremities, were the result of his exposure to herbicides while the Veteran was stationed in Okinawa Air Force Base in Japan, or during temporary duty (TDY) assignments in Vietnam during active service in the early 1960s.  As a result of the Agent Orange exposure, he says that post-service he developed type II diabetes mellitus, ischemic heart disease, and peripheral neuropathy to all four extremities.  

Upon review of the evidence, the Board denies the appeal for service connection for type II diabetes mellitus, ischemic heart disease, and peripheral neuropathy to all four extremities, to include as due to herbicide (Agent Orange) exposure.

The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran has a current disability.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F.3d 1328, 1332 (1997).  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In the present case, there is probative evidence that the Veteran meets the threshold criterion for service connection of a current disability.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Specifically, a February 2015 VA diabetes mellitus examination and February 2015 VA peripheral neuropathy examination diagnosed the Veteran with type II diabetes mellitus and diabetic peripheral neuropathy to all four extremities.  In addition, a February 2015 VA general medical / pension Disability Benefits Questionnaire (DBQ) diagnosed the Veteran with coronary artery disease.  VA treatment records dated in 2018 and 2019 revealed diagnoses and treatment for coronary artery disease, status post NSTEMI, status post left heart catheterization with angioplasty, atherosclerotic heart disease, and congestive heart failure.  Thus, it is undisputed the Veteran has current disabilities for all three of these issues on appeal.

The remaining question is whether symptoms of his current type II diabetes mellitus, ischemic heart disease, or peripheral neuropathy to all four extremities first manifested during active duty from 1961 to 1965 or are otherwise related to alleged Agent Orange exposure during service.  

There are two avenues for service connection based on herbicide / Agent Orange exposure – presumptive and direct service connection.    

	Presumptive Service Connection 

With regard to presumptive service connection, the law provides that certain diseases will be considered to have been incurred in service, even if there is no record of the disease during service, if that disease is associated with exposure to “herbicide agents” used in support of military operations in the Republic of Vietnam during the Vietnam era.  38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  A veteran is presumed to have been exposed to a herbicide agent if he or she served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that period of service.  38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii)-(iv).  Under VA regulation, service in the Republic of Vietnam is defined as “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.”  38 C.F.R. § 3.307(a)(6)(iii).  

Moreover, the Federal Circuit more recently held that for the purposes of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term “Service in the Republic of Vietnam” includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation.  See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc).  Therefore, a veteran is considered to have “served in the Republic of Vietnam,” regardless of whether the veteran had duty or visitation on the ground or in the inland waters of Vietnam.”  Id. at 1380-81.  Thereafter, on June 25, 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Act).  See Pub. L. No. 116-23, § 2, 133 Stat. 966, 966-67 (2019).  The Blue Water Act codified the Procopio holding and extended the presumption of herbicide exposure to those veterans who served “offshore of the Republic of Vietnam,” encompassing service in the territorial sea extending 12 nautical miles from the shores of both the Republic of Vietnam and Cambodia.  See 38 U.S.C. § 1116A(d).  In short, the Blue Water Act provides that the presumption of exposure to herbicide agents extends to all veterans who served between January 9, 1962 and May 7, 1975 “offshore of the Republic of Vietnam” – meaning locations within the 12-nautical-mile territorial sea of the Republic of Vietnam.  38 U.S.C. § 1116A(a).  

The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.  38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(i).  

Ischemic heart disease is one of the diseases associated with herbicide exposure for purposes of the presumption.  38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e).  The presumption of service connection requires exposure to a herbicide agent and manifestation of ischemic heart disease to a degree of 10 percent or more any time after service.  38 C.F.R. § 3.307(a)(6)(ii).  Under the applicable VA regulation listing the diseases associated with herbicide exposure, ischemic heart disease includes, but is not limited to:  acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina).  See 38 C.F.R. § 3.309(e).  

With regard to presumptive service connection, VA treatment records dated from 2018 to 2019 confirm the Veteran was diagnosed with ischemic heart disease, manifest to a degree of at least 10 percent or more after service.  38 C.F.R. § 3.307(a)(6)(ii).  That is, VA treatment records dated in 2018 and 2019 indicate that the Veteran’s heart disease is treated with continuous medication.  See 38 C.F.R. § 4.104, Diagnostic Code 7005 (arteriosclerotic heart disease / coronary artery disease).  Therefore, the Veteran has ischemic heart disease, one of the disorders associated with herbicide exposure for purposes of this presumption.  38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e).

Type II diabetes mellitus is also one of the diseases associated with herbicide exposure for purposes of the presumption.  38 U.S.C. § 1116(a)(2)(H); 38 C.F.R. § 3.309(e).  The presumption of service connection requires exposure to a herbicide agent and manifestation of type II diabetes mellitus to a degree of 10 percent or more any time after service.  38 C.F.R. § 3.307(a)(6)(ii).  As noted above, VA treatment records dated from 2018 to 2019 confirm that type II diabetes mellitus was manifest to a degree of at least 10 percent or more after service for the Veteran.  38 C.F.R. § 3.307(a)(6)(ii).  He was prescribed insulin and oral hypoglycemic agents.  The Veteran therefore has type II diabetes mellitus, one of the disorders associated with herbicide exposure for purposes of this presumption.  38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e).

“Early-onset” peripheral neuropathy is also one of the diseases associated with herbicide exposure for purposes of the presumption.  38 U.S.C. § 1116(a)(2)(H); 38 C.F.R. § 3.309(e).  For early-onset peripheral neuropathy, the disorder must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to a herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).  With regard to presumptive service connection, although diabetic peripheral neuropathy of the upper and lower extremities has been diagnosed, there is no lay or medical evidence of record of “early-onset” peripheral neuropathy manifest to a degree of 10 percent or more within a year after the last date on which the Veteran may have exposed to an herbicide agent during active military, naval, or air service, which would be 1965 or 1966.  38 C.F.R. § 3.307(a)(6)(ii).  The Veteran is therefore not entitled to service connection for “early-onset” peripheral neuropathy on a presumptive basis, even if herbicide agent exposure as discussed in 38 C.F.R. § 3.309(e) was ultimately confirmed here. 

With regard to presumptive service connection based on herbicide agent exposure, the Board now turns to the issue of whether or not the Veteran was exposed to herbicide agents while stationed in Okinawa Air Force Base in Japan, or during temporary duty (TDY) assignments in Vietnam during active service in the early 1960s.  

In this regard, the Board must determine, as a question of fact, both the weight and credibility of the evidence.  See Southall-Norman v. McDonald, 28 Vet. App. 346, 356 (2016).  Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value.  The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995).

However, with regard to presumptive service connection based on alleged service in Vietnam, the Veteran’s SPRs, including his DD Form 214, do not reveal any service in the Republic of Vietnam during the Vietnam era, or in or near the Korean DMZ from 1968 to 1971.  That is, he did not serve on the landmass, inland waterways, or in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam.  Procopio, 913 F.3d at 1380-81.  Therefore, the Veteran is not presumed to have been exposed to herbicides, including Agent Orange, on the basis of any Vietnam or Korean DMZ service.  38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), (iv); 3.313(a).  In making this determination, at a February 2015 VA diabetes mellitus examination, the Veteran reported that when he served in the U.S. Air Force from 1963 to 1965, he would fly into Da Nang, Vietnam on temporary duty (TDY) duty and spend a day or two, and then fly back to Okinawa, Japan on a regular basis.  See also January 2013 Report of General Information (VA Form 21-0820).  Again, the Veteran is trying to establish that he served in Vietnam because VA law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service.  38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  

But on the issue of TDY service in Vietnam, the Veteran’s SPRs confirm that although he served at the U.S. Air Force Base in Okinawa, Japan from November 1963 to March 1965, there is no confirmation in his SPRs of any TDY service in Vietnam.  In fact, a May 2013 NPRC PIES response concluded that all available requested SPRs relevant to temporary Vietnam duty / visitation, to include TDY orders, performance evaluations, and any other evidence of temporary duty or visitation to Vietnam, were already sent to the AOJ.  A review of these SPRs did not show any TDY service in Vietnam for the Veteran.  In addition, a January 25, 2019 E-mail response from VA’s Compensation Service, and a January 25, 2019 VA Memorandum concluded the Veteran failed to respond to VA’s recent letter for more detail regarding his alleged Agent Orange Exposure in Vietnam.  More significantly, in an April 2003 Application for Pension (VA Form 21-526) and January 2010 Application for Compensation (VA Form 21-526), the Veteran specifically indicated that he did not serve in Vietnam.  He also added he had no exposure to Agent Orange or other herbicides during service.  Credibility determinations of a witness or claimant are multifaceted and require consideration of factors such as: inconsistent statements, internal inconsistency of statements, consistency with other evidence of record, and other factors.  See Southall-Norman v. McDonald, 28 Vet. App. 346, 356 (2016).  In light of his inconsistent statements regarding TDY service in Vietnam, the Veteran is not credible regarding his allegation of TDY service in Vietnam during the Vietnam era.  There is also no VA or service department confirmation of any TDY Vietnam service.  Therefore, the Veteran is not presumed to have been exposed to herbicides, including Agent Orange, on the basis of any alleged Vietnam service.  38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), (iv); 3.313(a).  

However, the presumption of service connection for herbicide-related diseases could apply if exposure to a herbicide agent is shown at another location on a factual basis.  VA policy provides that if the Veteran did not serve in Vietnam during the Vietnam Era or the Korean DMZ in a particular unit during the required timeframe, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable.  Exposure to a herbicide agent is not presumed in such instances, but the exposure to one of the herbicide agents listed at 38 C.F.R. § 3.307(a)(6)(i) can still be established if shown by the facts of the case.  Once exposure to a herbicide agent has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable.  

However, the Board finds that exposure to a herbicide agent has not been established on a factual basis in this case.  There is no probative, persuasive evidence of record demonstrating Agent Orange or other herbicide agent exposure for the Veteran.  As noted above, the Veteran has alleged that he was exposed to Agent Orange or other herbicide agent while stationed in Okinawa Air Force Base in Japan when he served in the U.S. Air Force from 1963 to 1965.  He states that at Okinawa Air Force Base in Japan he was in close proximity to the flight line which was sprayed with herbicides to control the vegetation.  He also says that Agent Orange or other unknown chemicals were stored at the base and flown in as cargo in airplanes to Japan at that time.  In this way, the Veteran reported that he was exposed to Agent Orange or other herbicide during active duty in Okinawa, Japan.  See January 2013 Report of General Information (VA Form 21-0820); June 2013 NOD; and November 2014 VA Form 9.

Regardless of his lay assertions, the AOJ received negative responses for any confirmation of herbicide agent exposure in Japan.  The Veteran’s SPRs confirm that he served at the U.S. Air Force Base in Okinawa, Japan from November 1963 to March 1965, but there is no confirmation of any Agent Orange or other herbicide agent exposure.  Moreover, in a January 2010 Application for Compensation (VA Form 21-526), the Veteran denied any exposure to Agent Orange or other herbicides during service.  A September 2014 Formal Finding Memorandum from the JSRRC coordinator found that the information required to verify the exposure to Agent Orange or other herbicides was insufficient to allow a meaningful service of JSRRC records.  It was noted the Veteran’s SPRs were negative for evidence of deployments to areas where Agent Orange exposure could be confirmed.  

In addition, a January 25, 2019 E-mail response from VA’s Compensation Service advised 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.  The list does not contain names of individuals involved with Agent Orange.  Additionally, there are no references to routine base maintenance activities such as range management, brush clearing, and weed killing.  These were accomplished with commercial herbicides on all military bases worldwide.  It was noted that commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. § 3.307(a)(6)(i).  Regarding the Veteran, DoD has not identified any location on the island of Okinawa where Agent Orange was used, tested, stored, or transported.  Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971.  There were no combat operations on Okinawa during those years and so there was no need for Agent Orange use in that location.  Additionally, Okinawa was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships.  All evidence shows that any herbicide use the Veteran or others observed, or were associated with, was the commercial variety, not Agent Orange.  Therefore, VA’s Compensation Service found no evidence to support the Veteran’s claim.  The AOJ found it unnecessary to further refer the claim to the JSRRC to corroborate the Veteran’s claimed exposure to herbicide agents in Japan.

In short, the Veteran offers no probative evidence that he was actually exposed to a “herbicide agent” as defined by 38 C.F.R. § 3.307 (a)(6)(i) - 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram, or an equivalent variant of herbicide.  See 38 C.F.R. § 3.307(a)(6)(i).  See also Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (acknowledging that “herbicide agents” in certain instances may include both tactical and commercial herbicides).  In particular, the DoD is the custodian of records for the historical use of herbicides and is in the best position from review of its own records to determine whether a herbicide agent was present at Okinawa, Japan.  For example, the Veteran has not asserted personal knowledge that the contents of the cargo he saw actually contained a herbicide agent, shown by labeling or marking of the barrel.  Moreover, for the sake of argument, even if herbicide agents were stored at Osaka, Japan while the Veteran was stationed, this is not evidence that he was actually exposed to those herbicide agents.  The Veteran did not discuss any instances of open or damaged drums or canisters leaking herbicide agents.  Also, the Board sees there is no evidence of record the Veteran was involved in base maintenance activities at Okinawa, Japan involving herbicide spraying on the perimeter of bases.  His MOS was a clerk typist at that time.  The only evidence of exposure to herbicide agents is the Veteran’s own statements, which have not been corroborated and are outweighed by the other evidence of record discussed above.  See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010).

In sum, there is simply no credible, reliable evidence of record of the Veteran’s exposure to herbicide agents in service, nor any record demonstrating that herbicide agents were tested, stored, or transported at Okinawa, Japan where the Veteran was stationed.  As such, in light of the above evidence and the verification efforts, the probative, persuasive evidence of record demonstrates that herbicide agents were not present at Okinawa, Japan during the Veteran’s period of active service in the 1960s and, therefore, he was not exposed to a herbicide agent.  Thus, he is therefore not entitled to service connection for on a presumptive basis for type II diabetes mellitus or ischemic heart disease as discussed in 38 C.F.R. § 3.309(e).  

Direct Service Connection

However, this does not preclude the Veteran from establishing entitlement to service connection for his type II diabetes mellitus or ischemic heart disease or diabetic neuropathy with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  In fact, the Court has specifically held that the provisions set forth in Combee, which, instead, concerned exposure to radiation, are nonetheless applicable in cases, as here, involving exposure to Agent Orange.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); McCartt v. West, 12 Vet. App. 164, 167 (1999).

In the present case, diabetes mellitus and ischemic heart disease and peripheral neuropathy (other organic disease of the nervous system) are listed as an enumerated “chronic disease” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated “chronic disease” in service (or within the presumptive period under § 3.307), or “continuity of symptoms” of such a disease after service, the disease shall be presumed to have been incurred in service.  Walker, 708 F.3d 1335-1337.  Service connection for certain enumerated diseases, such as diabetes mellitus and ischemic heart disease and peripheral neuropathy, may be also be established on a presumptive basis by showing that it manifested itself 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, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  That is, under 38 C.F.R. § 3.303(b), with an enumerated “chronic disease” shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  See also Groves v. Peake, 524 F.3d 1306, 1309 (2008).  

In addition, for chronic diseases listed in 38 C.F.R. § 3.309(a)—such as diabetes mellitus and ischemic heart disease and peripheral neuropathy—service connection may also be established by showing continuity of symptoms, which requires a claimant to demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the post-service symptoms.  38 C.F.R. § 3.303(b) (2015); see Walker, 708 F.3d at 1340 (Fed. Cir. 2013) (holding that only those chronic diseases listed in 38 C.F.R. § 3.309 are subject to service connection by continuity of symptoms described in § 3.303(b)).  The correct understanding of the “condition noted during service” is that the condition is one that is indicative of but not dispositive of a chronic disease.  Walker, 708 F.3d at 1339.  Stated another way, continuity of symptomatology after discharge is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, i.e., “when the fact of chronicity in service is not adequately supported.”  38 C.F.R. § 3.303(b).  See also Walker, 708 F.3d at 1339-40.  

Furthermore, under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  See Combee, 34 F.3d at 1043.

With regard to direct service connection, Army Reserve treatment and personnel records dated from 1957 to 1961 appear to have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri.  See February 2008 NPRC letter to Veteran.  In any event, there is also no allegation by the Veteran or any other evidence of record that he was treated for diabetes mellitus or ischemic heart disease or peripheral neuropathy during his Army Reserve service from 1957 to 1961.  On several occasions, the Veteran has reiterated that he did not receive in-service treatment for the issues on appeal during his Army Reserve service.  Consequently, the fact that the Army Reserve records are missing for the time period from 1957 to 1961 has no relevant impact on these particular service connection claims.

With regard to direct service connection, as to in-service evidence, the Veteran’s STRs dated from 1961 to 1965 are negative for any complaints, treatment, or diagnosis of type II diabetes mellitus or blood sugar irregularities, ischemic heart disease, or peripheral neuropathy in all four extremities.  In fact, at the February 1965 STR separation examination, the Veteran was observed to have a normal endocrine system.  Laboratory testing showed that his sugar urinalysis was negative.  The examination of the upper extremities, lower extremities, heart, and neurologic systems was normal.  Chest X-rays were normal.  Moreover, although STRs dated from 1961 to 1965 document various instances of in-service treatment for other disorders, there is no record of the Veteran visiting military clinicians for treatment of diabetes mellitus or ischemic heart disease or peripheral neuropathy.  In fact, neither the Veteran nor his representative has stated that he exhibited any symptoms of the above post-service disabilities during service.  Thus, the Veteran’s STRs provide no evidence in support of these particular claims.  Although diabetes mellitus and ischemic heart disease and peripheral neuropathy are an enumerated “chronic disease” under 38 C.F.R. § 3.309(a) (listing named chronic diseases), none of these conditions in the present case are “shown” in service.  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.”  38 C.F.R. § 3.303(b).  No such manifestations of diabetes mellitus or ischemic heart disease or peripheral neuropathy are shown during his Air Force service from 1961 to 1965.  

Post-service, there is no probative evidence of diabetes mellitus or ischemic heart disease or peripheral neuropathy at a 10 percent level within one year after service in 1965 to 1966.  Rather, the first lay allegation or medical evidence of record for any of these disorders is decades after service.  Thus, the Veteran is not entitled to service connection for type II diabetes mellitus or ischemic heart disease or peripheral neuropathy on a presumptive one-year basis.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1335-37.   

Post-service, regarding the third element of service connection, or nexus through continuity of symptomatology under 38 C.F.R. § 3.303(b), neither the Veteran nor his representative asserts, and the clinical evidence of record does not establish, continuous symptoms of type II diabetes mellitus or ischemic heart disease or peripheral neuropathy after his separation from service in 1965.  See 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1335-1337.  In making this determination, the Board has considered that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991).  The mere absence of medical records does not contradict a Veteran’s statements about his symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  But here, the Veteran’s lack of description for his symptom history is consistent with what latter clinical evidence of record describes.  A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  In short, the post-service clinical evidence of record and the Veteran’s own silence in his lay assertions regarding any symptoms of type II diabetes mellitus or ischemic heart disease or peripheral neuropathy in-service and for many years post-service is significantly probative evidence weighing against any continuity of symptoms from the time of separation from service in 1965.  

In this regard, post-service, the earliest reported history in the clinical or lay evidence of record of the onset of type II diabetes mellitus and peripheral neuropathy is 1982 or 1986 (at the earliest) and of the onset of ischemic heart disease is 2003 or 2004.  This is decades after his separation from active duty.  See e.g., April 1999 VA treatment record (the Veteran has a diagnosis of type II diabetes mellitus for 17 years); February 2015 VA diabetes mellitus examination (onset of diabetic symptoms was 1986); October 2003 VA treatment records (first revealing hyperlipidemia); August 2004 Knapp Medical Center (first notation of mild congestive heart failure).  Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment.  White v. Illinois, 502 U.S. 346, 355-56 (1991).  The Board can assign more probative value to a post-service clinical record that included lay history that was made for treatment purposes than to subsequent statements from the veteran made for VA compensation purposes.  Harvey v. Brown, 6 Vet. App. 390-394 (1994).  All of the above clinical evidence documenting the date of onset of these particular conditions decades after service, weighs heavily against his claims, as it strongly suggests a post-service onset for the Veteran’s type II diabetes mellitus and ischemic heart disease and peripheral neuropathy of all four extremities. 

Post-service, with regard to a nexus, there is no probative medical evidence of record linking his current type II diabetes mellitus or ischemic heart disease or peripheral neuropathy with his period of service in the Air Force.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  Importantly, even if for the sake of argument the Board accepted as fact the Veteran’s allegation that at Okinawa Air Force Base in Japan he was in close proximity to the flight line which was sprayed with commercial herbicides (but not a herbicide agent) to clear vegetation, he has not submitted any private or VA medical opinion linking this alleged herbicide exposure to the three conditions above.  Absent such evidence of a nexus, service connection is not in order for the Veteran’s type II diabetes mellitus and ischemic heart disease and peripheral neuropathy.  

With regard to lay evidence of a nexus between the Veteran’s current type II diabetes mellitus or ischemic heart disease or peripheral neuropathy to his service in the Air Force, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology.  Davidson, 581 F.3d at 1316.  The Veteran and his representative are indeed competent to report any treatment for or symptoms of high blood sugar or heart problems or peripheral neuropathy during service or thereafter.  However, in the present case, neither the Veteran nor his representative has made any specific allegation of in-service symptoms of type II diabetes mellitus or ischemic heart disease or peripheral neuropathy or continuing symptoms of these conditions in the years immediately after separation from service in 1965.  Moreover, neither the Veteran nor his representative has the medical training or expertise for offering a medical nexus opinion that his type II diabetes mellitus or ischemic heart disease or peripheral neuropathy developed over time due to any incident or event or disease or exposure from his active service.  See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377.  

That is, “[a]lthough lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the documented development of type II diabetes mellitus or ischemic heart disease or peripheral neuropathy due to an injury or event or disease during active service decades ago earlier falls outside the realm of common knowledge of a lay person.  See again Jandreau, 492 F.3d at 1377 n.4 (lay persons are not competent to diagnose cancer).”  Type II diabetes mellitus and ischemic heart disease also require laboratory or radiology testing to confirm the diagnosis.  Moreover, no medical professional of record has submitted a written opinion with a rationale opining that the Veteran’s current type II diabetes mellitus or ischemic heart disease or peripheral neuropathy is somehow related to his period of military service from 1961 to 1965.  

	Secondary Service Connection

With regard to secondary service connection, there is evidence of record assessing that his ischemic heart disease and diabetic peripheral neuropathy in all four extremities are secondary to his type II diabetes mellitus.  See e.g., February 2015 VA diabetes mellitus examination.  But regardless, absent an award of service connection in the present Board decision for the underlying type II diabetes mellitus disability, there is no basis to establish secondary service connection by way of causation or aggravation for his ischemic heart disease and diabetic peripheral neuropathy to all four extremities.  See 38 C.F.R. § 3.310(a), (b).  

Importantly, the crux of the type II diabetes mellitus, ischemic heart disease, and peripheral neuropathy service connection issues on appeal centers on exposure to Agent Orange or other herbicides during service.  However, as explained in detail above, the probative evidence of record does not establish exposure to Agent Orange or other herbicide agents for the Veteran during service.   

Accordingly, the preponderance of the evidence is against the Veteran’s service connection claims for type II diabetes mellitus, ischemic heart disease, and peripheral neuropathy to all four extremities, to include as due to exposure to a herbicide agent (Agent Orange).  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  These three claims are denied.  

REASONS FOR REMAND

1. Service connection for bilateral carpal tunnel syndrome is REMANDED.

A remand by the Board confers on the claimant a legal right to compliance with the remand order.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Specifically, substantial compliance with the remand order, but not strict compliance, is required.  Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999).  In any event, a failure by the Board to ensure compliance with previous remand instructions constitutes error and warrants the vacating of a subsequent Board decision.  Stegall, 11 Vet. App. at 271.

In the present case, the AOJ did not substantially comply with some aspects of the development requested in the Board’s most recent April 2018 remand for the carpal tunnel syndrome issue on appeal.    

That is, in accordance with the instructions of the Board’s April 2018 Board remand, the AOJ secured a February 2019 VA medical opinion from a VA nurse practitioner.  However, this VA medical opinion addressing the etiology of the Veteran’s carpal tunnel syndrome, although probative, is not fully adequate.  On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Specifically, it is unclear from the record whether the VA nurse practitioner’s February 2019 examination of the Veteran’s upper extremities examined the correct nerve root in order to detect the existence of previous or current carpal tunnel syndrome.  The VA examiner plainly stated there were “subjective” symptoms only, but it was unclear whether the proper examination to detect any current or previous carpal tunnel syndrome was utilized.  If an examination report contains insufficient detail, “it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”  38 C.F.R. § 4.2; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001).  

Also, the February 2019 VA nurse practitioner failed to discuss any of the clinical evidence of record that listed carpal tunnel syndrome as a current or previous diagnosis.  See e.g., September 2011 VA treatment record (first noting carpal tunnel syndrome of the hands); March 2012 VA doctor letter (advising Veteran is currently under his care and treated for carpal tunnel syndrome); April 2012 Crosspoint Medical Clinic private record (noting a referral for treatment of carpal tunnel syndrome in September 2011); VA treatment records dated from 2011 to 2019 (recording a carpal tunnel syndrome diagnosis in the active problem list).  On this issue, the Court has held that an adequate medical opinion with regard to etiology should consist of a discussion of all relevant evidence.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).  The Court has also held that a VA medical examiner’s conclusions were of “questionable probative value” when the VA examiner failed to consider certain relevant information.  Mariano v. Principi, 17, Vet. App. 305, 312 (2003).  The February 2019 VA nurse practitioner failed to discuss this pertinent clinical evidence of record above, in the context of determining whether the existence and etiology of any current or previous carpal tunnel syndrome.

Also, the February 2019 VA nurse practitioner failed to adequately address the Veteran and his spouse’s relevant lay assertions of continuity of symptoms for the carpal tunnel syndrome disorder on appeal.  Miller v Wilkie, 32 Vet. App. 249, 258 (2020).  A VA examiner must at least address a veteran’s lay assertion that he has had symptoms of the disability for which he is claiming service connection for during and since service.  Id.  The Court added that a VA examiner needs to explain whether the claimant’s lay assertions are generally “consistent or inconsistent” with medical knowledge.  Id. at 259-60.  However, at this stage, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports of continuous symptoms during and since service for his carpal tunnel syndrome.  Rather, the Board is merely requesting that the VA clinician on remand consider and address the Veteran’s own lay descriptions of the history of his carpal tunnel syndrome disorder and treatment therefor.  Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020).  

Also, the February 2019 VA nurse practitioner failed to directly answer the etiology questions as posed, for the carpal tunnel syndrome issue on appeal.  Specifically, Instruction #9 of the April 2018 Board remand requested, in part, that a VA clinician opine whether it is “at least as likely as not” (i.e., 50 percent or more probable) that current carpal tunnel syndrome of the hands is related to the Veteran’s Air Force service from 1961 to 1965?  The VA clinician was asked to address whether the Veteran’s MOS as a clerk typist in the Air Force from 1961 to 1965 caused carpal tunnel syndrome to develop over time post-service.  However, in the February 2019 VA medical opinion, the VA nurse practitioner failed to discuss the impact of the Veteran’s MOS as a clerk typist. 

Finally, for the carpal tunnel syndrome condition, if a diagnosis cannot be provided (e.g., there is no identifiable underlying pathology), the VA examiner should specifically state whether the condition nevertheless manifests in symptoms that cause functional impairment of earning capacity associated with the Veteran’s complaints of pain or other symptoms.  See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (holding that pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment).

First, therefore, although it will result in additional delay in adjudicating the appeal, a remand is required to ensure substantial compliance with the Board’s previous April 2018 Board remand.  The AOJ must obtain a VA addendum opinion.  This new VA medical opinion should address whether any current or previous carpal tunnel syndrome of the hands is “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1961 to 1965 – specifically, whether frequent typing from the Veteran’s MOS as a clerk typist caused carpal tunnel syndrome to develop over time post-service?  This time, the new VA medical opinion should address the pertinent medical and lay evidence of record as listed by the Board and perform the appropriate VA examination to detect the existence of any previous or current carpal tunnel syndrome of the hands.  If the same February 2019 VA nurse practitioner is not available, another qualified VA clinician will provide the addendum opinion.  Another VA examination for the Veteran’s carpal tunnel syndrome disorder on appeal is not necessary unless the VA clinician specifically requests one.   

2. Service connection for a thoracolumbar spine disorder is REMANDED.

3. Service connection for a cervical spine (neck) disorder is REMANDED.

4. Service connection for a RIGHT knee disorder is REMANDED.

5. Service connection for a LEFT knee disorder is REMANDED.

Second, the February 2020 VA medical opinions from a VA nurse practitioner addressing the etiology of the Veteran’s current disorders of the thoracolumbar spine, cervical spine, and bilateral knees, although probative, are not fully adequate.  On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate.  Barr, 21 Vet. App. at 312.  For the neck, the Veteran was diagnosed with degenerative arthritis of cervical spine by the VA examiner, despite the lack of any X-rays of record for the neck.  Also, in rendering the opinion, the February 2019 VA nurse practitioner failed to discuss any of the pertinent clinical and lay evidence of record as listed by the Board for all of the above disorders.  Also, the February 2019 VA nurse practitioner was asked to address the impact of the Veteran’s MOS on the development of the above disabilities.  That is, the Veteran credibly reported that his MOS as a cannoneer involved the heavy lifting of artillery shells and operating of heavy firearms (155 howitzer) during his periods of ACDUTRA from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas.  However, in the February 2019 VA medical opinions, the VA nurse practitioner failed to discuss the impact on the above disabilities on appeal of the Veteran’s MOS duties in the Army Reserve from 1957 to 1961. 

In short, for the thoracolumbar spine, cervical spine, and bilateral knee disorders on appeal, the AOJ must obtain VA addendum opinions on the etiology of these disorders, after a review of the record.  These VA addendum opinions should be secured from the same VA nurse practitioner who performed the February 2019 VA examinations.  If the same February 2019 VA examiner is not available, another qualified VA clinician will provide the VA addendum opinions.  Another VA examination for each of the disorders on appeal is not necessary unless the VA clinician specifically requests one.   

Therefore, these issues are REMANDED for the following action:

1. For the carpal tunnel syndrome of the hands, obtain a VA addendum opinion from the February 2019 VA nurse practitioner examiner.  If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion.  The VA examiner must review the claims file.  The VA examiner must provide a rationale to support the opinions.  

The VA examiner is asked to provide a response to the following:

(a.) Does the Veteran have a current or previous bilateral carpal tunnel syndrome disability for the hands?  (Please perform the appropriate VA examination for carpal tunnel syndrome on the appropriate nerve root or explain why this examination is not necessary).  Or rather, can the Veteran’s hand complaints be explained by a current diagnosis of bilateral upper extremity diabetic neuropathy?  

(b.) If no diagnosis can be provided for the hands (e.g., no identifiable underlying pathology), the VA examiner should still specifically state whether any bilateral hand condition manifests in symptoms that causes functional impairment of earning capacity, associated with the Veteran’s complaints of hand pain and numbness.  If there is functional impairment, then the VA examiner should consider the bilateral hand condition a “disability” for the purpose of providing the requested nexus opinion(s) below.

(c.) Is any current or previous carpal tunnel syndrome of the hands “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1961 to 1965 – specifically, whether frequent typing from the Veteran’s military occupational specialty (MOS) as a clerk typist caused carpal tunnel syndrome (or another hand condition) to develop over time post-service? 

(d.) In providing the requested opinions above, this time, the new VA medical opinion should discuss the pertinent medical and lay evidence of record as listed by the Board.  The VA examiner should consider the Veteran’s lay description of his in-service duties as well as his lay description of his post-service carpal tunnel syndrome symptoms gradually worsening over time.  It should be noted if there is any medical reason to accept or reject the proposition that the Veteran’s reported injury through his MOS duties in service and thereafter represented the onset of current carpal tunnel syndrome.  Stated another way, do the Veteran’s lay reports about the gradual development of carpal tunnel syndrome symptoms post-service align with how any current diagnosed carpal tunnel syndrome is known to develop, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible?

(e.) In rendering the above opinions, the VA examiner should focus on the following relevant evidence:

During active duty in the Air Force from 1961 to 1965, an April 1961 STR enlistment examination and a February 1965 STR separation examination both reveal normal upper extremities and a normal neurological system.  At the February 1965 STR separation examination, the Veteran denied all other pertinent surgical or medical history, aside from penile lesions, painful urination, hemorrhoids, hay fever, and eye conjunctivitis. 

During active duty in the Air Force from 1961 to 1965, the Veteran’s SPRs confirm that his MOS was a clerk typist.

Post-service, within a year of separation from service, at an August 1965 VA examination – his musculoskeletal examination was normal.  There were no documented complaints related to the hands.  In an August 1965 VA clinical record within one of service, the only present complaints were stomach pain and dizziness.  The Veteran had a history of appendicitis and peptic ulcer and eye problems, but there were no other physical complaints within one year of service. 

Post-service, clinical evidence of record has listed carpal tunnel syndrome as a current or previous diagnosis for the Veteran.  See e.g., September 2011 VA treatment record (first noting carpal tunnel syndrome of the hands); March 2012 VA doctor letter (advising Veteran is currently under his care and treated for carpal tunnel syndrome); April 2012 Crosspoint Medical Clinic private record contained in April 30, 2012 Congressional document on VBMS (noting a referral for treatment of carpal tunnel syndrome in September 2011); VA treatment records dated from 2011 to 2019 (recording a carpal tunnel syndrome diagnosis in the active problem list).    

Post-service, the February 2019 VA diabetic neuropathy examination appears to have diagnosed the Veteran with diabetic neuropathy in both upper extremities. 

Post-service, a latter June 2019 VA neurocognitive services addendum note listed the Veteran’s report of multisite weakness (including “bilateral hand numbness”). 

With regard to lay evidence, post-service, in an April 2012 letter to a congressman and an April 2012 Veteran statement, the Veteran reported continuity of symptoms for hand problems that worsened over time due to his MOS duties as a typist in the Air Force from 1961 to 1965.  In an April 2012 spouse statement, the Veteran’s spouse advised that while serving in the Air Force from 1961 to 1965, the Veteran worked administratively as a typist and evidently damaged some of the muscular tissue in his fingers, hands, and wrists, causing the development of carpal tunnel syndrome.  She added that in addition to being the Veteran’s spouse, she and the Veteran have been close business associates and worked closely and side-by-side since they met in 1980.

2. For the cervical spine (neck), obtain a VA addendum opinion from the February 2019 VA nurse practitioner examiner.  If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion.  Only if deemed necessary by the VA examiner is another VA neck examination necessary.  The VA examiner must review the claims file.  The VA examiner must provide a rationale to support the opinions.  

The VA examiner is asked to provide a response to the following:

(a.) Does the Veteran have a current cervical spine (neck) disability?  (The Veteran was previously diagnosed with degenerative arthritis of the cervical spine, but there are no X-rays of record establishing this diagnosis – please secure X-rays or explain why they are not necessary here).   

(b.) If a diagnosis cannot be provided for the cervical spine (neck) (e.g., no identifiable underlying pathology), the VA examiner should still specifically state whether any neck condition manifests in symptoms that causes functional impairment of earning capacity, associated with the Veteran’s complaints of neck pain.  If there is functional impairment, then the VA examiner should consider the neck condition a “disability” for the purpose of providing the requested nexus opinion(s) below.

(c.) Is any current cervical spine (neck) disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to his periods of ACDUTRA service in Army Reserve from 1957 to 1961 and to his Air Force service from 1961 to 1965? Specifically, please address whether the Veteran’s military occupational specialty (MOS) as a cannoneer which involved the heavy lifting of artillery shells and operating of heavy firearms (155 howitzer) during his periods of ACDUTRA from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas, caused a neck condition to develop over time post-service?  Assume the Veteran is credible in describing this heavy lifting during periods of ACDUTRA from 1957 to 1961, despite the fact that all service records from this time period in the Army Reserve were destroyed in a fire.  

(d.) In providing the requested opinions above, this time, the new VA medical opinion should discuss the pertinent medical and lay evidence of record as listed by the Board.  The VA examiner should consider the Veteran’s lay description of his in-service MOS duties as well as his lay description of his post-service neck symptoms gradually worsening over time.  It should be noted if there is any medical reason to accept or reject the proposition that the Veteran’s reported injury through his MOS duties in service and thereafter represented the onset of a current neck condition.  Stated another way, do the Veteran’s lay reports about the gradual development of neck symptoms post-service align with how any current diagnosed neck arthritis is known to develop after heavy lifting duties, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible?

(e.) In rendering the above opinions, the VA examiner should focus on the following relevant evidence:

During active duty in the Air Force from 1961 to 1965, an April 1961 STR enlistment examination and a February 1965 STR separation examination both reveal a normal spine and normal neurological system.  At the February 1965 STR separation examination, the Veteran denied all other pertinent surgical or medical history, aside from penile lesions, painful urination, hemorrhoids, hay fever, and eye conjunctivitis.

Post-service, within a year of separation from service, at an August 1965 VA examination, his musculoskeletal examination was normal.  There were no documented complaints related to the cervical spine (neck).  In an August 1965 VA clinical record within one of service, the only present complaints were stomach pain and dizziness.  The Veteran had a history of appendicitis and peptic ulcer and eye problems.  But there were no other physical complaints within one year of service. 

Post-service, a November 2012 VA nursing outpatient note documented the first report of “upper back pain.”  In an April 2014 Application for Pension (VA Form 21-527EZ), the Veteran stated he was disabled from a neck injury disability that began post-service in January 2003.  In a January 2016 VA nursing note, the Veteran had ER treatment at Valley Baptist Harlingen after a fall the day before.  The Veteran reported neck pain and mild headache after slipping and hitting the right side of his head on a wall as he fell.  The physical examination was normal.  A November 2016 VA primary care outpatient progress note indicated the Veteran has chronic neck pain.  He is going to acupuncture.  His trigger points are trapezius muscles.  He has cervical adenopathy.  He improved after acupuncture treatment.  Finally, a February 2017 VA primary care outpatient progress note revealed “mild anterior cervical LAD.”

Post-service, a February 2019 VA examination and medical opinion indicated there was no nexus to service for the current neck arthritis.  However, the VA examiner failed to discuss the clinical and lay evidence of record in rendering this opinion.  

Post-service, a June 2019 VA neurocognitive services addendum note listed the Veteran’s report of multisite weakness (including the neck). 

3. For the knees, obtain a VA addendum opinion from the February 2019 VA nurse practitioner examiner.  If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion.  Only if deemed necessary by the VA examiner is another VA examination or testing or X-rays necessary.  The VA examiner must review the claims file.  The VA examiner must provide a rationale to support the opinions.  

The VA examiner is asked to provide a response to the following:

(a.) Is any current right or left knee disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to his periods of ACDUTRA service in Army Reserve from 1957 to 1961 and to his Air Force service from 1961 to 1965?  Specifically, please address whether the Veteran’s military occupational specialty (MOS) as a cannoneer which involved the heavy lifting of artillery shells and operating of heavy firearms (155 howitzer) during his periods of ACDUTRA from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas, caused a bilateral knee condition to occur at that time or develop over time post-service.  Assume the Veteran is credible in describing this heavy lifting during periods of ACDUTRA from 1957 to 1961, despite the fact that all service records from this time period in the Army Reserve were destroyed in a fire.  

(b.) In providing the requested opinion above, the VA examiner should consider the Veteran’s lay description of his in-service knee injuries and symptoms as well as his lay description of his post-service knee symptoms.  It should be noted if there is any medical reason to accept or reject the proposition that the Veteran’s reported injuries and symptoms in service and thereafter represented the onset of any current knee disability.  Stated another way, do the Veteran’s lay reports about his in-service and continuing post-service knee symptoms align with how any currently diagnosed knee disability is known to develop, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible? 

(c.) In rendering the above opinions, the VA examiner should focus on the following relevant evidence:

During active duty in the Air Force from 1961 to 1965, an April 1961 STR enlistment examination and a February 1965 STR separation examination both reveal normal lower extremities.  At the February 1965 STR separation examination, the Veteran denied all other pertinent surgical or medical history, aside from penile lesions, painful urination, hemorrhoids, hay fever, and eye conjunctivitis. 

Post-service, within a year of separation from service, at an August 1965 VA examination, his musculoskeletal examination was normal.  There were no documented complaints related to the bilateral knees.  In an August 1965 VA clinical record within one of service, the only present complaints were stomach pain and dizziness.  The Veteran had a history of appendicitis and peptic ulcer and eye problems.  But there were no other physical complaints within one year of service. 

Post-service, in a January 2010 Application for Compensation (VA Form 21-526), the Veteran reported that his left leg and right knee pain began in March 1964 during his active duty in the Air Force.  Private treatment records dated in 2011 document difficulty walking.  In an April 2012 letter to a congressman and an April 2012 Veteran statement, the Veteran reported his left knee was weak due to too much activity in Okinawa, Japan in 1963 and 1964 in the Air Force.  He added he did not report knee pain during service, because he did not want to be disciplined.  He simply lived with knee pain.  He also reported an in-service incident when after a long walk, he experienced a swollen knot on the back of his left leg.  Again, he did not report this injury during service. 

Post-service, a December 2012 VA addendum note assessed degenerative arthritis for both knees.  VA treatment records dated from 2012 to 2019 reveal complaints and treatment for bilateral knee pain, knee braces, physical therapy, leg weakness, the occasional use of a walker, gait disturbance, and obesity.  A January 2016 VA nursing note documented right knee pain with use of a cane.  A March 2018 VA nursing note discussed a left hip and left knee X-ray – there was left knee mild soft tissue changes and degenerative changes.  

Post-service, in a May 2012 VA physician note, the Veteran reported recent exacerbation of pain to both knees and muscle strain of the left thigh area.  He provided a reported history of straining his leg muscles during active duty service in the 1950s / 1960s after a 10 mile walk.  He got "knots" in his thighs and has never been the same since.  In a December 2012 VA physician note, the Veteran reported bilateral knee pain the past couple of months.  He added that his bilateral knee pain began during his periods of ACDUTRA from 1957 to 1961 when he operated heavy firearms in the Army Reserve. 

Post-service, a February 2019 VA examination and medical opinion indicated there was no nexus to service for the current bilateral knee arthritis.  However, the VA examiner failed to discuss the clinical and lay evidence of record in rendering this opinion. 

4.  For the thoracolumbar spine, obtain a VA addendum opinion from the February 2019 VA nurse practitioner examiner.  If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion.  Only if deemed necessary by the VA examiner is another VA examination or testing or X-rays necessary.  The VA examiner must review the claims file.  The VA examiner must provide a rationale to support the opinions.  

The VA examiner is asked to provide a response to the following:

(a.) Is any current thoracolumbar spine disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to his periods of ACDUTRA service in Army Reserve from 1957 to 1961 and to his Air Force service from 1961 to 1965?  Specifically, please address whether the Veteran’s military occupational specialty (MOS) as a cannoneer which involved the heavy lifting of artillery shells and operating of heavy firearms (155 howitzer) during his periods of ACDUTRA from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas, caused a thoracolumbar spine disability to occur at that time or develop over time post-service.  Assume the Veteran is credible in describing this heavy lifting during periods of ACDUTRA from 1957 to 1961, despite the fact that all service records from this time period in the Army Reserve were destroyed in a fire.  

(b.) In providing the requested opinion above, the VA examiner should consider the Veteran’s lay description of his in-service thoracolumbar spine injuries and symptoms as well as his lay description of his post-service thoracolumbar spine disability symptoms.  It should be noted if there is any medical reason to accept or reject the proposition that the Veteran’s reported injuries and symptoms in service and thereafter represented the onset of any current thoracolumbar spine disability.   Stated another way, do the Veteran’s lay reports about his in-service and continuing post-service thoracolumbar spine symptoms align with how any currently diagnosed thoracolumbar spine disability is known to develop, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible? 

(c.) In rendering the above opinions, the VA examiner should focus on the following relevant evidence:

With regard to lay evidence, the Veteran has stated in the record that he experienced low back pain when lifting artillery shells during his periods of ACDUTRA from 1957 to 1961, but he was not treated for the low back pain at that time.

During active duty in the Air Force from 1961 to 1965, an April 1961 STR enlistment examination and a February 1965 STR separation examination both reveal a normal spine and normal neurological system.  At the February 1965 STR separation examination, the Veteran denied all other pertinent surgical or medical history, aside from penile lesions, painful urination, hemorrhoids, hay fever, and eye conjunctivitis. 

Post-service, within a year of separation from service, at an August 1965 VA examination – his musculoskeletal examination was normal.  There were no documented complaints related to the spine.  In an August 1965 VA clinical record within one of service, the only present complaints were stomach pain and dizziness.  The Veteran had a history of appendicitis and peptic ulcer and eye problems.  But there were no other physical complaints within one year of service. 

Post-service, an October 2003 VA treatment record first noted lumbago (low back pain).  VA treatment records dated in 2003 and 2004 documented chronic low back secondary to degenerative joint disease and stenosis.  A May 2004 Statement of Attending Physician (TVC-16) recorded a “long history of low back pain” that has progressively worsened.  The Veteran was diagnosed with moderate lumbar spine stenosis.  An April 2010 VA MRI of the lumbar spine demonstrated multilevel degenerative disc disease most prominent at L3 through S1 with moderate to severe canal and neuroforaminal stenosis at those levels.  A May 2014 VA MRI of the lumbar spine revealed marked L2/3, L3/4 and L4/5 degenerative changes with marked central canal narrowing and marked bilateral neural foraminal narrowing.  There was also marked L5/S1 bilateral neural foraminal narrowing.  A January 2016 CT scan of the lumbar spine showed “severe” multilevel degenerative disc and joint disease, worse at L3-4 and L4-5 levels.  

Post-service, in a December 2012 VA physician note, the Veteran reported his low back pain began at age 17 in the Army Reserve when he operated heavy firearms.  A February 2015 VA thoracolumbar spine examination diagnosed severe lumbar strain and intervertebral disc syndrome, with date of onset listed as 1972 (VA examiner likely meant 1962 during service).  There was no rationale provided for in-service onset.  

Post-service, VA pain medicine follow up notes dated in February 2014, May 2014, and June 2015 document the Veteran’s reported history of his back pain starting while on active duty in the Army Reserves.  The Veteran reported that he hurt his back while in the artillery (Army Reserve from 1957 to 1961) lifting heavy shells.  He admitted he was never treated for this back pain while in the Army Reserve.  He did report that post-service he was treated for his low back pain by the VA in California in 1965, within one year of service.  But this is not supported by any evidence of record.  Finally, at a February 2015 VA diabetes mellitus examination, the Veteran reported low back pain which has bothered him since he was in the Army Reserve in Fort Sill, Oklahoma “a long time ago.”  

Post-service, at an April 2016 VA physical therapy consult response, the Veteran reported his low back pain began “years ago” “for no apparent reason.”

Post-service, a February 2019 VA examination and medical opinion indicated there was no nexus to service for the current thoracolumbar spine degenerative arthritis.  However, the VA examiner failed to discuss any of the clinical evidence of record listed above in rendering this opinion. 

Post-service, at an April 2019 VA physical therapy consult, the Veteran reported the “gradual onset of pain” post-service after undergoing military exercises during active duty.  A radiology report showed marked L2/L3, L3/L4 and L4/L5 degenerative change with marked central canal narrowing and marked bilateral neural foraminal narrowing, in addition to marked L5/S1 bilateral neural foraminal narrowing.        

 

 

T. Berry

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.S. Rubin, 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.