Citation Nr: 21025865 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-18 154 DATE: April 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for allergies, to include as due to herbicide exposure, is denied. Entitlement to service connection for a skin disorder, to include as secondary to allergies and/or due to herbicide exposure, is denied. Entitlement to service connection for hypertension, to include as secondary to allergies and/or due to herbicide exposure, is denied. Entitlement to service connection for adult-onset diabetes, to include as secondary to allergies and/or due to herbicide exposure, is denied. Entitlement to service connection for a digestive disorder, to include as secondary to allergies and/or due to herbicide exposure, is denied. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to allergies and/or due to herbicide exposure, is denied. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to allergies and/or due to herbicide exposure, is denied. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to allergies and/or due to herbicide exposure, is denied. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to allergies and/or due to herbicide exposure, is denied. REMANDED Entitlement to service connection for a right eye disorder, to include as secondary to allergies and/or due to herbicide exposure, is remanded. Entitlement to service connection for arthritis due to trauma, to include as secondary to allergies and/or due to herbicide exposure, is remanded. Entitlement to service connection for a neck disorder, to include as secondary to allergies and/or due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The Veteran has bilateral sensorineural hearing loss that was likely incurred during service. 2. The Veteran has tinnitus that was likely incurred during service. 3. The Veteran did not have in-service herbicide exposure. 4. The Veteran has allergic rhinitis that was incurred years after his separation from service and that did not result from an in-service injury, illness, or event. 5. The Veteran has dermatitis and seborrheic keratosis that was incurred years after his separation from service and that did not result from an in-service injury, illness, or event. 6. The Veteran has hypertension that was incurred years after his separation from service and that did not result from an in-service injury, illness, or event. 7. The Veteran has diabetes that was incurred years after his separation from service and that did not result from an in-service injury, illness, or event. 8. The Veteran does not have a digestive disorder or gastrointestinal symptoms or manifestations of the same. 9. The Veteran does not have neuropathy or any other neurological disorder in any of his extremities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for allergies, to include as due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 4. The criteria for service connection for a skin disorder, to include as secondary to allergies and/or due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 5. The criteria for service connection for hypertension, to include as secondary to allergies and/or due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 6. The criteria for service connection for adult-onset diabetes, to include as secondary to allergies and/or due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 7. The criteria for service connection for a digestive disorder, to include as secondary to allergies and/or due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102 and 3.303 (2020). 8. The criteria for service connection for right upper extremity peripheral neuropathy, to include as secondary to allergies and/or due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2020). 9. The criteria for service connection for left upper extremity peripheral neuropathy, to include as secondary to allergies and/or due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2020). 10. The criteria for service connection for right lower extremity peripheral neuropathy, to include as secondary to allergies and/or due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2020). 11. The criteria for service connection for left lower extremity peripheral neuropathy, to include as secondary to allergies and/or due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from April 1966 through April 1968. This appeal arises from the Veteran’s March 2016 claim and the agency of original jurisdiction’s (AOJ’s) October 2016 rating decision which denied the issues on appeal. The Veteran perfected a timely appeal under VA’s Legacy system and initially requested that a video conference hearing be scheduled in this matter. A hearing was scheduled to be held in February 2021; however, the Veteran did not appear. Neither the Veteran nor his representative has stated any cause for the Veteran’s failure to appear for his hearing, nor have they asked that a new hearing be scheduled. The matter now comes to the Board for review. Service Connection 1. Entitlement to service connection for bilateral hearing loss, to include as due to allergies and/or due to herbicide exposure. The Veteran claims entitlement to service connection for bilateral hearing loss. The evidence shows that the Veteran has bilateral sensorineural hearing loss that was likely incurred during his active duty service. An October 2016 audiology examination confirmed that the Veteran had elevated pure tone hearing thresholds and decreased speech recognition in both ears that were consistent with sensorineural hearing loss. Notably, the examiner’s report does not discuss the history of the onset and duration of the Veteran’s hearing loss; however, the examiner did note that the Veteran had been experiencing tinnitus for the last 48 years. The examiner added that tinnitus is “a symptom associated with hearing loss.” Hence, he seems to suggest that the Veteran’s tinnitus was preceded by his hearing loss. Although the examiner opined that it is less likely than not that the Veteran’s hearing loss was incurred during service or caused by an in-service injury, illness, or event, he did not address or consider the Veteran’s implied assertion that his hearing loss had been chronic and ongoing since service. In the absence of such a discussion, the examiner’s negative opinion is incomplete. In contrast, the Veteran’s assertion that he has had ongoing hearing loss since service is not rebutted by contrary evidence. Given the same, the Board finds that assertion credible. The evidence shows that the Veteran has bilateral sensorineural hearing loss that was likely incurred during his active duty service. The Veteran is entitled to service connection for bilateral sensorineural hearing loss. To that extent, this appeal is granted. 2. Entitlement to service connection for tinnitus, claimed as ringing in the ears, to include as secondary to allergies and/or due to herbicide exposure. As mentioned, the Veteran reported during an October 2016 audiology examination that he had been experiencing ringing in his ears for the previous 48 years. Essentially, he asserts that his tinnitus has been chronic and ongoing since his active duty service. The Veteran is competent to describe the onset and duration of observable symptoms and disorders such as tinnitus. Here, the Veteran’s assertion that his tinnitus dates to his period of active duty service is not rebutted by any evidence in the record. The Veteran’s assertion is credible. The evidence shows that the Veteran has had tinnitus (i.e., ringing in his ears) that began during his active duty service. The Veteran is entitled to service connection for tinnitus. To that extent, this appeal is granted. 3. Entitlement to service connection for allergies, to include as due to herbicide exposure. The Veteran claims entitlement to service connection for allergies which he believes resulted from in-service herbicide exposure. In support of his claim, he elaborates that he was exposed to Agent Orange during service in Albany, Georgia and Mobile, Alabama while performing repairs and modifications to tanks and other military vehicles that had returned to the United States following service in Vietnam. The Veteran’s assertions concerning in-service herbicide exposure unavailing. The service department records show that the Veteran did not serve in Vietnam, and indeed, he raises no such contention. As such, he may not be presumed as having been exposed to herbicides during service. Personnel records corroborate that the Veteran performed duties as a vehicle repairman primarily at Albany, Georgia, and certainly, it is plausible that the Veteran performed repairs and modifications on vehicles that were returned from Vietnam. Although the Veteran asserts in a July 2016 statement that the vehicles were “covered in dust from Agent Orange,” he does not elaborate as to how he knew or believed that the dust was Agent Orange. To the extent that the Veteran describes that the vehicles were “covered in dust,” it is unclear as to why he believed that the dust was an herbicide. He provides no explanation as to whether he could feel, smell, or taste anything that led him to believe that the vehicles were covered in an herbicide agent, or alternatively, whether he simply inferred that the dust was an herbicide agent based on his knowledge that the vehicles were returned from Vietnam. In short, the Veteran’s allegations regarding herbicide exposure are speculative. Moreover, the Veteran does not demonstrate any knowledge or expertise that would explain how the vehicles that he worked with, which were shipped thousands of miles back to the United States, would be covered in herbicides. For these reasons, the Board finds that the Veteran was not likely exposed to any herbicides during service. Based on the foregoing, service connection for the Veteran’s allergies cannot be granted on the theory that they were caused by herbicides. Notably, the Veteran asserted in his February 2016 claim and accompanying statement that his allergies began “a few years” after his active duty service. Indeed, service treatment records are entirely silent for any allergy-related complaints during service, and also, reflect no objective findings, treatment, or diagnoses during service for any allergies. The post-service treatment records show that the Veteran has been under private and VA treatment for allergic rhinitis since approximately 2012. Those records, however, do not express any opinion or contain any information that suggests that the Veteran’s allergy is related etiologically to the Veteran’s active duty service. As noted, the Veteran has asserted that his allergies began “a few years” after his active duty service. Certainly, the Veteran is competent to report and describe his own observations of any allergy-related symptoms, including his observations as to when those symptoms began. Nonetheless, he is not competent to provide a probative opinion regarding the etiology and cause of his allergies, which according to his own history began years after he was separated from service. Although the Board is sympathetic to the Veteran’s earnest belief that his allergies are related to his active duty service, the Board is unable to accept that belief as a probative medical opinion. Moreover, in the absence of any other probative information or evidence that even tends to suggest that the Veteran’s allergies may be related to the Veteran’s active duty service, further development by way of a medical examination or opinion is not warranted. The evidence shows that the Veteran’s allergies were not incurred during the Veteran’s active duty service and did not result from an in-service injury, illness, or event. The Veteran is not entitled to service connection for allergies. To that extent, this appeal is denied. 4. Entitlement to service connection for a skin disorder, to include as secondary to allergies and/or due to herbicide exposure. The Veteran claims entitlement to service connection for a skin disorder which he believes resulted from herbicide exposure during service. Although he appears to allege primarily that his skin problems may have resulted secondarily from his allergies, or alternatively, resulted from in-service herbicide exposure, service connection cannot be granted based on those theories given the analysis above. Subject to the foregoing, the evidence also shows that the Veteran’s skin problems were likely incurred by the Veteran after his separation from service, and also, that they did not result from an in-service injury, illness, or event. In his February 2016 claim, he reported that his skin problems began “a few years” after his active duty service. Consistent with that assertion, the service treatment records reflect no skin-related complaints by the Veteran during service, and also, reflect no objective findings, treatment, or diagnoses during service for any skin abnormalities. The post-service treatment records show that the Veteran has received private and VA treatment for diagnosed dermatitis and seborrheic keratosis since approximately 2012. Those records, however, express no opinion and contain no information that suggests that the Veteran’s skin disorders are related etiologically to the Veteran’s active duty service. As with his allergies, the Veteran is competent to report and describe his own observations of any skin abnormalities, including his observations as to when he began experiencing skin problems. Still, he is not competent to provide a probative opinion regarding the etiology and cause of those skin abnormalities, which began years after he was separated from service. As such, the Board is unable to accept that belief as a probative medical opinion. Moreover, in the absence of any other probative information or evidence that even tends to suggest that the Veteran’s skin disorders may be related to the Veteran’s active duty service, further development by way of a medical examination or opinion is not warranted. The evidence shows that the Veteran’s dermatitis and seborrheic keratosis were not incurred during the Veteran’s active duty service and did not result from an in-service injury, illness, or event. The Veteran is not entitled to service connection for a skin disorder. To that extent, this appeal is denied. 5. Entitlement to service connection for hypertension, to include as secondary to allergies and/or due to herbicide exposure. The Veteran also claims entitlement to service connection for hypertension. Although he argues primarily that his hypertension may have resulted secondarily from his allergies, or alternatively, resulted from in-service herbicide exposure, service connection for hypertension cannot be granted based on those theories given the analysis above. The Veteran raises no express allegation as to when he first received a hypertension diagnosis. Subject to the same, there is no indication in the service treatment records that the Veteran’s hypertension began during service. In that regard, the service treatment records reflect no in-service cardiovascular abnormalities. Indeed, blood pressure readings taken during the Veteran’s enlistment and separation examinations were normal. Post-service treatment records show that the Veteran has been followed for hypertension since approximately 2016. Those records express no opinion concerning the etiology or cause of the Veteran’s hypertension, and moreover, contain no information that even suggests that the Veteran’s hypertension may be related etiologically to the Veteran’s active duty service. Despite the Veteran’s earnest belief that his hypertension may be related in some way to his active duty service, he is not competent to provide a probative opinion in that regard. For this reason, the Board does not assign the Veteran’s assertion any probative weight. Further, in the absence of any probative information or evidence in the record that even tends to suggest that the Veteran’s hypertension may be related to the Veteran’s active duty service, further development by way of a medical examination or opinion is not warranted. The evidence shows that the Veteran’s hypertension was not incurred during the Veteran’s active duty service, and also, did not result from an in-service injury, illness, or event. The Veteran is not entitled to service connection for hypertension. To that extent, this appeal is denied. 6. Entitlement to service connection for adult-onset diabetes, to include as secondary to allergies and/or due to herbicide exposure. The Veteran also claims entitlement to “adult-onset diabetes” which he asserts in his February 2016 claim began “a few years” after his separation from service. Although he suggests specifically that his diabetes may have resulted from his allergies, service connection cannot be awarded on that basis given that service connection for allergies is denied by the analysis above. Also, service connection for the Veteran’s diabetes cannot be granted based on the regulatory presumption that it resulted from in-service herbicide exposure. As discussed above, the Board concludes that the Veteran was not exposed to herbicides during service. The Veteran does not dispute that his diabetes began years after his separation from service. Nonetheless, the Veteran’s enlistment examination notes that the Veteran was reporting at that time that he did have a prior history for sugar or albumin in his urine. He does not, however, point to any specific pre-enlistment lab findings or treatment. Moreover, the enlistment examination was generally normal and showed no abnormalities in the Veteran’s endocrine system. Under the circumstances, the Board concludes that the Veteran must be presumed as having been sound (i.e., without diabetes) at the time of his enlistment. Subject to the foregoing, the post-service treatment records show that the Veteran has been monitored medically for diabetes since approximately 2015. The records contain no opinion concerning the etiology or cause of the Veteran’s diabetes, and further, express no information that suggests that there is an etiological relationship between the Veteran’s diabetes and his active duty service. Though the Board is mindful of the Veteran’s belief that his diabetes is related in some way to his active duty service, the Veteran is also not competent to provide a probative opinion regarding the etiology and cause of his diabetes, which by his own reported history, began years after he was separated from service. As such, the Board is unable to assign probative weight to the Veteran’s general assertion that his diabetes is related to his active duty service. Moreover, in the absence of any other probative information or evidence that tends to suggest that the Veteran’s diabetes may be related to the Veteran’s active duty service, further development by way of a medical examination or opinion is not warranted. The evidence shows that the Veteran’s diabetes was not incurred during the Veteran’s active duty service, and also, did not result from an in-service injury, illness, or event. The Veteran is not entitled to service connection for diabetes. To that extent, this appeal is denied. 7. Entitlement to service connection for a digestive disorder, right and left upper extremity peripheral neuropathies, and right and left lower extremity peripheral neuropathies, to include as secondary to allergies and/or due to herbicide exposure. The Veteran claims entitlement to service connection for a digestive disorder and for peripheral neuropathies in his upper and lower extremities. He asserts generally in his February 2016 claim and in an April 2021 brief that each of those disorders may be due to allergies, or alternatively, due to claimed herbicide exposure during service. The evidence shows that the Veteran does not have any current digestive disorder or symptomatology or any current neuropathies or other neurological disorder in any of his extremities. To that end, the Veteran does not point to any specific treatment or diagnoses in the record nor does he describe any history of symptoms or problems related to a digestive disorder or neurological disorder in any of his extremities. The service department records reflect no in-service complaints, treatment, or diagnoses for any digestive complaints. Indeed, the Veteran’s April 1968 separation examination notes no abnormalities of the abdomen or viscera. Similarly, the service department records contain no reference to any in-service neurological complaints, or any treatment or diagnoses related to any neurological disorders during service. Post-service treatment records also show no evidence of any history for digestive or neurological disorders. In that regard, repeated physical examinations conducted during private and VA treatment received by the Veteran since 2015 showed no evidence of any gastrointestinal, abdominal, or neurological abnormalities. In sum, there is simply no evidence that suggests that the Veteran has had any history of a digestive disorder or neurological disorder. The Veteran is not entitled to service connection for a digestive disorder, right and left upper extremity peripheral neuropathies, and/or right and left lower extremity peripheral neuropathies. To that extent, this appeal is denied. REASONS FOR REMAND 1. Examination for right eye. The Veteran claims entitlement to service connection for a right eye disorder. Service treatment records show that the Veteran had right eye refractive error that pre-existed his enlistment into service. Post-service VA treatment records show that he has been followed for ongoing refractive error, and, for separately diagnosed right eye disorders that include posterior capsular and nuclear brunescent cataracts, presbyopia, hypermetropia, and arteriosclerotic retinopathy. The evidence raises questions as to whether eye disorders including cataracts, presbyopia, hypermetropia, and arteriosclerotic retinopathy resulted from the Veteran’s active duty service. Despite the same, the Veteran has yet to be afforded an eye examination. Such an examination should be afforded to the Veteran at this time. 38 C.F.R. § 3.159 (c)(4). 2. Spine and joints examinations for claimed arthritis and neck disorder. The Veteran asserts that he injured his spine and knees during service while performing repairs on military vehicles. It is unclear as to whether the Veteran is asserting that he incurred specific trauma or injuries during service. Construing the Veteran’s allegations broadly, the Board understands the Veteran as asserting that he has a current neck disorder and arthritis that may have resulted from repetitive stress and strain on his cervical spine and joints as a result of his in-service duties. Subject to the above, post-service private treatment records from Dr. S.A.O. document objective findings for ankle edema, knee crepitus, and low back pain from October 2015 through January 2016. Records for subsequent VA treatment received by the Veteran in November 2016 reflect a diagnosis for right knee osteoarthritis. Records for VA treatment received by the Veteran in November 2018 report diagnoses for generalized osteoarthritis in the Veteran’s lumbar spine and knees. A March 2020 examination conducted to determine housebound status and/or the need for aid and attendance also reports a diagnosis for cervical spine arthritis. The Veteran should be afforded an examination for his spine and joints to determine whether he has arthritis or any other disorder that is related etiologically to the Veteran’s active duty service, to include as a result of repetitive stress and strain on the affected joints during service. 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his claims remaining on appeal. Records for VA treatment received by the Veteran since April 2019 and any relevant private treatment identified by the Veteran and not already of record should be obtained. If the records are not available, such unavailability should be documented in the record. The Veteran should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. After the development ordered in Paragraph 1 is complete, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any right eye condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. The examiner should identify all right eye disabilities present. For each identified right eye disability, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran’s right eye condition is solely attributable to a congenital disease (meaning the condition can improve or deteriorate) instead of a congenital defect (meaning the condition is static in nature, and cannot generally improve or deteriorate)? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. B. If deemed a congenital disease, is it at least as likely as not that the Veteran’s right eye condition was aggravated or worsened by the Veteran’s time on active duty service? The examiner should discuss the natural progression of the condition. C. If deemed a congenital defect, does the Veteran have a superimposed right eye disease or injury? If so, is it at least as likely as not that the Veteran’s superimposed right eye disease or injury was either incurred in, or is otherwise attributable to, the Veteran’s active duty service? D. If the Veteran has a right eye condition that is not a congenital disease or defect, is it at least as likely as not that the Veteran’s right eye condition was either incurred in, or is otherwise attributable to, the Veteran’s active duty service? The examiner cannot improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. The claims file should be made available to the examiner. The examiner should provide a detailed rationale that explains fully all of the reasons for the given opinions. 3. After the development ordered in Paragraph 1 is complete, schedule the Veteran for a spine examination to determine the nature and etiology of his claimed neck disorder and arthritis. The examiner should provide diagnoses relevant to the Veteran’s cervical and thoracolumbar spine, and for each diagnosis, provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the disorder was caused by or resulted from an in-service injury, illness, or event, to include repetitive physical stress and strain on the spine from duties as a vehicle repairman. The claims file should be made available to the examiner and the examiner should review the claims file in conjunction with the examination. The examiner should provide a detailed rationale that explains fully all of the reasons for the given opinions. 4. After the development ordered in Paragraph 1 is complete, schedule the Veteran for a joints examination to determine the nature and etiology of his claimed arthritis. The examiner should provide diagnoses relevant to the Veteran’s joints, and for each diagnosis, provide opinions as to whether it is at least as likely as not (at least a 50 percent probability) that the disorder was caused by or resulted from an in-service injury, illness, or event, to include repetitive physical stress and strain from duties as a vehicle repairman. The claims file should be made available to the examiner and the examiner should review the claims file in conjunction with the examination. The examiner should provide a detailed rationale that explains fully all of the reasons for the given opinions. 5. After completion of the above development, the issues on appeal should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Lee 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.