Citation Nr: 21030659 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-30 723 DATE: May 19, 2021 ORDER 1. The appeal contesting the propriety of the severance of service connection for right ear hearing loss is granted; restoration of service connection for right ear hearing loss is granted. REMANDED 2. Entitlement to service connection for diabetes is remanded. 3. Entitlement to service connection for left upper extremity neuropathy is remanded. 4. Entitlement to service connection for right upper extremity neuropathy is remanded. 5. Entitlement to service connection for left lower extremity neuropathy is remanded. 6. Entitlement to service connection for right lower extremity neuropathy is remanded. 7. Entitlement to service connection for erectile dysfunction (ED) is remanded. 8. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. 9. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The award of service connection for right ear hearing loss is not shown to have been clearly and unmistakably erroneous. CONCLUSION OF LAW The severance of service connection for right ear hearing loss was not proper; restoration of service connection for right ear hearing loss is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.105, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who had active service from April 1970 to February 1972, to include service in Thailand. This case is before the Board of Veterans' Appeals (Board) on appeal from May 2013, January 2014, and November 2014 Department of Veterans Affairs (VA) rating decisions. In February 2021, a hearing was held before the undersigned; a transcript is in the record. Restoration of Service Connection Once service connection is granted, it may be severed (severance is the legal term for termination of service connection) only upon a showing that the rating decision that granted service connection was clearly and unmistakably erroneous. The burden to prove such error is on the government. 38 C.F.R. § 3.105. Clear and unmistakable error (CUE) is defined as "a very specific and rare kind of error." "It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The United States Court of Appeals for Veterans Claims (CAVC) has identified a three-part test to determine whether there is CUE in a prior determination. To establish CUE the following must be shown: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions existing at the time were incorrectly applied; (2) the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and, (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In determining whether service connection will be severed, VA may - and, in fact, must - consider evidence that was generated after the original decision was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); see Daniels v. Gober, 10 Vet. App. 474, 480 (1997). When severance of service connection is deemed warranted, there are certain due process protections afforded the veteran, specifically, a rating proposing severance is to be prepared setting forth all material facts and reasons. The veteran should be notified at his latest address of record of the contemplated action and furnished detailed reasons. The veteran must be given 60 days for response/presentation of additional evidence to show that service connection should be maintained. 38 C.F.R. § 3.103(b)(2), 3.105(d). For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's service treatment records (STRs) show that audiometry on a pre-induction examination in October 1969 found the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 5 LEFT 15 5 10 20 On January 1974 separation examination audiometry puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 5 15 LEFT 15 10 10 25 30 On June 2012 VA examination, audiometry showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 55 65 LEFT 35 40 50 75 75 Bilateral hearing loss was diagnosed. The examiner opined that it was at least at likely as not that the Veteran's ear hearing loss was caused by or a result of an event in service. A November 2012 rating decision granted service connection for bilateral hearing loss but did include a narrative. Thereafter, in a July 2013 addendum opinion, the June 2012 VA examiner upon re-review of the Veteran's claims file, opined that the Veteran's right ear hearing loss was less likely than not due to his active service. The examiner noted that the Veteran had normal right ear hearing on his service separation examination, and concluded that his current right ear hearing loss could not be related to military noise exposure. An October 2013 rating decision proposed to sever service connection for right ear hearing loss based on a finding that the November 2012 rating decision grant of service connection for right ear hearing loss was erroneous. A January 2014 rating decision severed service connection for right ear hearing loss effective April 1, 2014, which the Veteran appealed to the Board. At the February 2021 Board hearing, the Veteran testified that he had noise exposure in both ears and questioned why only the left ear would be service connected. The procedural steps followed by the RO in proposing and implementing the severance of service connection for right ear hearing loss satisfied the requirements of 38 C.F.R. § 3.105(d). The Veteran does not contend otherwise. Accordingly, what remains for consideration is whether severance was warrant As stated above, to establish that severance of service connection is warranted the evidence must show that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(d). In other words, it must be undebatable (reasonable minds could not differ) that the criteria for an award of service connection were not met. This is a much higher burden of proof than is necessary for simple denial of a claim for service connection (which essentially requires that the evidence show that it is less likely than not that the criteria for establishing service connection are met, i.e. that the preponderance of the evidence is against the service connection claim). See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, when service connection for bilateral hearing loss was granted the Veteran was shown to have bilateral hearing loss (that is not in dispute). It is also not in dispute that the Veteran was exposed to excessive levels of noise in service. Furthermore, the June 2012 VA examiner, who had diagnosed a bilateral sensorineural hearing loss opined that the hearing was as likely as not due to an event in service, citing to the Veteran's exposure to noise in service. That rationale cited points to facts not in dispute. Accordingly, the grant of service connection was a not reasonable judgment call relying on a competent (medical) opinion. It is not clear what triggered the July 2013 opinion that in essence retracted the provider's earlier opinion and concluded that the right ear hearing loss was unrelated to service. The expanded rationale cited to lack of as significant a threshold shift in the right ear during service. That represents another, more reasoned, judgement. However, another judgment call is insufficient to establish that severance was warranted. When severance is being considered, the determination is not merely based on a de novo adjudication (considering an expanded, by an addendum opinion, record), with the new determined based on a preponderance of the evidence. What must be shown is that correct law was no applied when the grant was made (and here that is not shown, as the requirements for establishing service connection were met); or that the facts on which the grant was based were incorrect (and Veteran had a bilateral hearing loss disability, and he was exposed to excessive noise in service, and the judgement call initially made by the provider was not one that a competent medical provider could not have made). It was not clear and unmistakable, i.e., undebatable, that the Veteran's right ear hearing loss was not due to an event in service as the VA examiner concluded in June 2012. Under these circumstances, the Board finds that the burden of proof required for severance of service connection under 38 C.F.R. § 3.105(d) has not been met; the severance of service connection for right ear hearing loss was improper; and restoration of service connection for right ear hearing loss disability is warranted. REASONS FOR REMAND The Veteran's claim of service connection for diabetes is premised on an Agent Orange exposure presumptive theory of entitlement. He asserts while stationed at U-Tapao Royal Thai Air Force Base (RTAFB), he was exposed to herbicide agents that resulted in his diabetes. His service personnel records confirm that he was stationed at U-Tapao RTAFB from February 1971 to June 1971. VA considers disability benefits claims based on exposure to herbicide agents on a U.S. military base in Thailand or Royal Thai Air Force base between January 9, 1962, and May 7, 1975, on a case-by-case basis. In April 2011, the Veteran reported that at U-Tapao RTAFB, his quarters were near the flight line (which itself was near the perimeter). He reported that his duties were to clear and prepare land with machinery and chemicals. He reported that Agent Orange was routinely applied to land adjacent to his sleeping quarters. In June 2012, he reported that trucks would routinely pass by spraying Agent Orange on and around the perimeter fence that was adjacent to his living quarters. In February 2013, the Defense Personnel Records Information Retrieval System (DPRIS) determined that there was no information regarding the use, spraying, storage, or transportation of Agent Orange at U-Tapao RTAFB between February 1971 and June 1971. In February 2013, the RO determined that there was no evidence of exposure to Agent Orange while the Veteran served in Thailand. At the February 2021 Board hearing, the Veteran testified that while he was stationed at U-Tapao RTAFB, his sleeping quarters were at the back of the base near the harbor. He testified that vegetation was sprayed with a chemical from an herbicide truck labeled Agent Orange. He testified that a truck also sprayed a chemical and that he had contact with the chemical. The veracity of his sworn testimony requires confirmation. The Veteran has also alleged that he was exposed to various other herbicides, and that the AOJ did not consider the other exposures in their determination. [The Board observes that the presumptive provisions of 38 U.S.C. § 1116, are limited to the chemicals in herbicide agents listed in 3.307, and that if the Veteran is seeking service connection based on other exposures, he must support his claim with evidence of the alleged exposures and competent evidence that such may have caused the claimed disability.] The claims of service connection for peripheral neuropathy of both upper and both lower extremities and for ED are premised on the theory that such disabilities are secondary to diabetes; therefore, those issues are inextricably intertwined with the claim of service connection claim for diabetes, and also require remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The claim of service connection claim for OSA is premised on a theory that his diabetes resulted in weight gain, which in turned caused OSA. Although obesity (of itself) is not a disability for VA compensation purposes, it may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). See Marcelino v. Shulkin, No. 16-2149 (Vet. App. Jan. 23, 2018). Therefore, this issue is also inextricably intertwined with the claim of service connection for diabetes, and must also be remanded. The Veteran asserts that he has a diagnosis of PTSD which was incurred in service. His treatment records show that he reported having PTSD symptoms in July 2016. Later medical records refer to a diagnosis of PTSD, but there is no notation of an Axis I mental health disorder diagnosis. The Veteran has reported that while he was on a flight while stationed at McCoy Air Force Base, he left on a flight in December 1970, an engine blew and required the plane to return. He stated that the pilot said they were only minutes from a crash, and that he has had a great fear of flying since. He has also reported that in January 1971, after departing from Westover Air Force Base for U-Tapao RTAFB, all the engines shut down and the plane began a rapid descent until the engines were restored (which also traumatized him). In May 2013, the RO determined that the information provided by the Veteran was insufficient to verify the described events. Afterwards, the Veteran reported that in February 1971 while he was at U-Tapao RTAFB, several soldiers died during the night, which was reported as suicides (when in fact they were killed). At the February 2021 Board hearing, he testified that there were hostilities near U-Tapao RTAFB while he was stationed there, with B-52s shot down, and that there were also suicides there then. At least some of the events he describes are clearly verifiable (if in fact they occurred). Development to seek verification is necessary. If any alleged stressor is corroborated, a VA examination to determine the nature and likely etiology of any acquired psychiatric disorder would be necessary. The matters are REMANDED for the following: 1. Review the Veteran's reports of exposure to herbicide agents in service (specifically during his service at U-Tapao RTAFB from February 1971 to June 1971) and the nature of his how he was exposed to herbicide agents in service, ask him to provide any further details needed to seek verification, and forward the accounts to the Joint Services Records Research Center (JSRRC) with a request for verification of such exposures. What is sought is verification whether the Veteran's work duties involved his use of herbicide agents (as he has alleged), whether trucks sprayed herbicide agents on and around the perimeter fence, and whether his sleeping quarters and duties placed him in close proximity to the base perimeter (where and when spraying of herbicide agents occurred). A map of the base showing the runways, streets, housing, and perimeter should provide the information needed (and should be provided for inclusion in the record). The opinion should address the plausibility of the Veteran's accounts that he was involved in duties which periodically placed him at, or near, the base perimeter when herbicide agents were sprayed there, that he was involved in spraying herbicide agents, and that trucks/or soldiers sprayed herbicide agents on the base itself (whether such allegations are consistent or inconsistent with known Air Force practices). The JSRRC report should be incorporated in the record. If the information provided is deemed insufficient for the opinion sought, the JSRRC coordinator should identify (for the record) what additional information is needed to allow for verification, and the Veteran should be so advised, and offered opportunity to supplement the record with the additional information needed. (2) If it is established that the Veteran plausibly was exposed to herbicide agents in the manner, and when, alleged, arrange for the Veteran's record to be forwarded to an appropriate physician or physicians for review and advisory medical opinions addressing the etiology of his ED and regarding the etiology of his OSA (whether caused by obesity which was due to diabetes). The consulting provider should respond to the following: a. Did the Veteran's diabetes at least as likely as not cause his obesity? b. If so, was the obesity caused by his diabetes at least as likely as not a substantial etiological factor for his development of OSA? c. Would the OSA not have occurred but for the obesity caused by the Veteran's diabetes? 3. With any necessary identification of sources by the Veteran (and authorizations for VA to obtain private records), secure for the record all outstanding VA and/or private records of treatment the Veteran has received for psychiatric disability. 4. Arrange for exhaustive development to corroborate each of the Veteran's reported stressor events during his active service. 2. If any alleged stressor event is deemed corroborated, arranger for the Veteran to be examined by an appropriate clinician (a psychiatrist or psychologist) to determine the existence, nature, and likely etiology of his claimed psychiatric disorder, and specifically whether he has a diagnosis of PTSD in accordance with DSM-5. The examiner should consider the lay statements by the Veteran and his wife describing his mental health symptoms. 3. The examiner should respond to the following: a. Identify by diagnosis each acquired psychiatric disability found on examination or shown by the record during the pendency of the claim. Specifically, does the Veteran have a diagnosis of PTSD in accordance with DSM-5 based on a corroborated stressor event in service? b. Identify the likely etiology for each acquired psychiatric disorder other than PTSD diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that is it etiologically related to his active duty service, was incurred therein. All opinions must include rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.