Citation Nr: 21024972 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-48 827 DATE: April 27, 2021 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II, as due to exposure to herbicide agents is remanded. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for cataracts as secondary to diabetes mellitus, type II, is remanded. FINDING OF FACT The Veteran’s tinnitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, to include in-service noise exposure. . CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 1110, 1112, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1963 to July 1965. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision dated February 2018 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for tinnitus The Veteran is seeking entitlement to service connection for tinnitus due to hazardous in-service noise exposure. In this regard, in his April 2017 VA 21-526EZ Form, the Veteran wrote, “tinnitus – began in service still exists today.” In his July 2018 Notice of Disagreement (NOD) the Veteran wrote, “the noise exposure from the ship has caused me to continue to have ringing.” In an October 2019 Form 9, the Veteran provided, “Because of the military noise exposure on the ship I have been having ringing in my ears.” In a June 2020 Appellate Brief, the Veteran’s representative wrote, “We argue that the Veteran was stationed aboard a ship which is conceded to have exposure [to] noise. It is possible that the noise exposure caused and/or contributed to the Veteran’s tinnitus.” In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (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 present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that the Veteran has tinnitus, which is a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), but it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Although the Veteran has reported in-service noise and the Board concedes such exposure, service treatment records are silent with respect to any complaints, findings or diagnosis of tinnitus. The June 1965 service examination prior to discharge was also silent with respect to any complaints or findings of tinnitus and showed that the ears were clinically evaluated as normal. Post-service evidence does not document any reports of tinnitus until the Veteran filed his current claim in March 2017, 52 years after his separation from service and 51 years outside of the applicable presumptive period. The first documentation of a diagnosis is the September 2017 VA examination. As such, there is no medical evidence of pertinent symptomatology. Further, although, the Veteran has asserted that he experienced tinnitus symptoms in service, the Board finds his statements not credible as they are internally inconsistent with the medical evidence of record that documented no such complaints. In this regard, again, service treatment records are silent with respect to any such complaints. Importantly, November 2011 and December 2016 post-service medical treatment records noted that the Veteran denied ringing in his ears. The Veteran reported recurrent tinnitus about 15 to 20 years prior at his September 2017 VA examination, circa between 1997 and 2002, more than three decades after his separation from service and 31 to 36 years outside of the applicable presumptive period. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service connection for tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s tinnitus and an in-service injury, event or disease, including hazardous noise exposure. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. With regards to whether a causal relationship exists between the Veteran’s current tinnitus and his active duty service, a VA examiner provided an audiological examination in September 2017. During the examination, the Veteran reported intermittent tinnitus that did not occur frequently, and he was unsure of how long it lasted. He noted that it began around 15 to 20 years prior. In the examiner’s opinion, the Veteran’s tinnitus was less likely as not caused by or a result of military noise exposure. See VA Examination dated September 2017. The VA examiner provided, “The Veteran does not timelock onset to an event in or during military service. VBMS records indicate he denied tinnitus in November 2011 and December 2016.” The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the question of whether a nexus exists between the Veteran’s active duty service and his current tinnitus is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical education or knowledge. See 38 C.F.R. § 3.159(a)(1). The Veteran has not shown relevant medical training, experience or education. Hence, the Veteran’s statements are outweighed by the more probative VA opinion. For all the foregoing reasons, the Board finds that the claim for service connection for tinnitus must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).   REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, as due to exposure to herbicide agents is remanded. The Veteran asserts that his type II diabetes is due to exposure to herbicide agents while on active duty. During his active duty service, the Veteran served on the U.S.S. Towers. The Veteran contends that he was exposed to herbicide agents when the ship he was stationed aboard patrolled up and down the coast of Vietnam on the Gulf of Tonkin from December 1964 to May 1965. He noted that he never set foot in Vietnam. See Lay Statement dated August 2017. In his Form 9 dated October 2018, the Veteran wrote: I was aboard the USS Towers bound to the WEST-PAC on January 5, 1965 in which my ship was patrolling the coastal waters of Vietnam on the Gulf of Tonkin. We headed back home in May of 1965. Due to my service in Vietnam I was exposed to the Agent Orange herbicide which caused me to get diabetes type II. A review of the Veteran’s personnel and service treatment records were negative for documentation that substantiates the Veteran’s claim of herbicide exposure. The records confirm the Veteran was aboard the USS Towers while in service. The Board notes that the Dictionary of American Naval Fighting Ships and the Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents document were reviewed and noted that the USS Towers operated on the Saigon River and Rung Sat Special Zone in July 1966. However, this period was after the Veteran’s active duty service. Importantly, on January 29, 2019, the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase “service in the Republic of Vietnam” in 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Effective January 1, 2020, the Blue Water Navy Act implemented this holding, and service in the Republic of Vietnam is now defined as service on the landmass, inland waterways, or territorial sea extending twelve nautical miles from the shores of Vietnam as provided in 38 U.S.C. § 1116A. Unfortunately, the Board finds the evidence does not definitively show the Veteran was within 12 nautical miles offshore of the Republic of Vietnam per Procopio and 38 U.S.C. § 1116A. Accordingly, the Veteran’s claim for entitlement to service connection for type II diabetes due to exposure to herbicide agents must be remanded in order for the agency of original jurisdiction to determine whether the USS Towers served in the legally recognized territorial limits of the Republic of Vietnam while the Veteran was aboard the ship. 2. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus, type II, is remanded. 3. Entitlement to service connection for cataracts as secondary to diabetes mellitus, type II, is remanded. The Veteran has asserted that his erectile dysfunction and cataracts are associated with, and/or proximately due to his diabetes mellitus, type II. As a decision on the remanded issue of entitlement to service connection for type II diabetes could significantly impact a decision on the issues of service connection for erectile dysfunction and cataracts, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). As such, these issues must also be remanded. Accordingly, the matters are REMANDED for the following action: 1. Take appropriate steps to verify the location of the USS Towers while the Veteran was onboard from December 1964 to May 1965, to include within twelve nautical miles off the shores of the Republic of Vietnam. All efforts at such verification should be documented. If the location cannot otherwise be verified, the deck logs for this time period must be obtained and associated with the claims file. 2. If and only if herbicide exposure is verified and service connection for diabetes mellitus is presumed, schedule the Veteran for a VA examination to determine the etiology of any erectile dysfunction and cataracts. The examiner must opine whether the Veteran’s erectile dysfunction and cataracts are at least as likely as not proximately due to or aggravated by diabetes mellitus, type II. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.