Citation Nr: 21031302 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 14-34 214A DATE: May 21, 2021 ORDER Entitlement to service connection for hearing loss is dismissed. Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for a bilateral eye disability (claimed as diabetic retinopathy and loss of vision) is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is remanded. Entitlement to service connection for a thyroid disorder is remanded. Entitlement to service connection for a sleep disorder is remanded. FINDINGS OF FACT 1. On April 2, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he no longer wanted to proceed with the appeal of service connection for hearing loss. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran was exposed to herbicide agents during active service in Vietnam. 3. The Veteran has a current diagnosis of diabetes mellitus type II. 4. Diabetes mellitus type II is presumed due to exposure to herbicide agents during service. 5. The Veteran has a current diagnosis of diabetes mellitus with associated bilateral eye retinopathy. 6. Resolving all doubt in favor of the Veteran, PTSD was incurred in active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for hearing loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a bilateral eye disability (claimed as diabetic retinopathy and loss of vision) have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to service connection for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1110, 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran originally requested a video conference hearing before a Veterans Law Judge. The hearing was set for April 2018 and the Veteran was duly notified of this at his address of record. There is no indication in the claims file that the letter was returned or otherwise not received by the Veteran. The Veteran failed to appear at the April 2018 hearing and has not provided any good cause for such failure. Because the Veteran has not submitted good cause for his failure to appear, the request for a hearing is deemed withdrawn. 38 C.F.R.§20.704 (d) (failure to appear for a scheduled hearing treated as withdrawal of request). In November 2018, the Board denied entitlement to service connection for the claims on appeal herein. The Veteran filed an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC) contesting the Board's November 2018 decision. In an April 2018 memorandum decision, the CAVC vacated and remanded the Board's denial. In its decision, the CAVC found the Board erred when it failed to establish that the Veteran's presence in Vietnam during the applicable presumptive period. Accordingly, the appeal has been vacated and remanded to the Board for action consistent with the CAVC decision. As will be discussed below, the Board has considered the evidence of record and will proceed with a decision on the merits. To this end, the Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104 (d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with Fletcher in mind. Withdrawal The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the claimant or the authorized representative. 38 C.F.R. § 20.204 (c). The Veteran, through the authorized representative, notified the Board in an April 2021 written statement that he no longer wanted to proceed with the appeal of service connection for hearing loss. Significantly, the April 2021 correspondence indicating the Veteran's intent to withdraw his appeal is explicit, unambiguous, and done with a full understanding of the consequences of such action on his part. Warren v. McDonald, 28 Vet. App. 214, 218 (2017) (citing DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)). The Board finds that communication constitutes a valid withdrawal of the appeal for the service connection claim. As a result of the Veteran's withdrawal of the claims on appeal, no allegation of error of fact or law remains before the Board for consideration with regard to those claims. Therefore, the Board finds that the Veteran has withdrawn the appeal of service connection for hearing loss. The Board does not have jurisdiction to review that claim. Therefore, that claim is dismissed. Service Connection 1. Entitlement to service connection for diabetes mellitus Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To establish service connection for a current disability, a Veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. at 448 (1995). A Veteran is presumed to have been exposed to herbicide agents if the Veteran served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during that service. 38 U.S.C. § 1116 (f). Those Veterans who served in the Republic of Vietnam during the Vietnam Era benefit from presumptive service connection for disabilities related to herbicide exposure. For purposes of applying the herbicide presumption, the Veteran must have served at some point on the landmass or inland waters of Vietnam to meet the requirement of service in the Republic of Vietnam for the presumption of exposure to herbicide agents. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); 38 C.F.R. § 3.307 (a)(6)(iii). If the Veteran did not serve in the Republic of Vietnam during the Vietnam era, 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 disease under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to herbicide agents is not presumed in those instances. However, once exposure to herbicide agents has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide agent-related disabilities is applicable. The list of diseases presumptively associated with exposure to herbicide agents includes diabetes mellitus, type II. 38 C.F.R. § 3.309(e). The Veteran contends that his diabetes mellitus was caused by exposure to herbicide agents while serving in Vietnam. Medical records show a current diagnosis of diabetes mellitus, type II. Regarding herbicide agent exposure, the Board notes that in its August 2020 memorandum decision, the Court found that the evidence of record established the Veteran's presence in Vietnam. The Board is bound by this favorable finding. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for diabetes mellitus type II, on a presumptive basis due to herbicide agent exposure, is warranted. Thus, resolving reasonable doubt in the Veteran's favor, service connection for diabetes mellitus type II presumed due to herbicide agent exposure is granted. 2. Entitlement to service connection for a bilateral eye disability (claimed as diabetic retinopathy and loss of vision). The Veteran seeks service connection for bilateral retinopathy, secondary to diabetes mellitus. An April 2021 treatment record diagnosed the Veteran with diabetes mellitus with moderate to severe diabetic retinopathy, a recognized complication of diabetes mellitus. The Board finds that the treatment records confirm that the bilateral diabetic retinopathy is a complication associated with diabetes mellitus. Based on that evidence, and in light of the above grant of service connection for diabetes mellitus, the Board finds that service connection for bilateral retinopathy is warranted on a secondary basis as due to or the result of service-connected diabetes mellitus. Therefore, the claim is granted. 38 C.F.R. § 3.310. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V). 38 C.F.R. § 4.125(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §§ 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked evidence that is not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran is seeking service connection for a psychiatric disability, to include PTSD. The Veteran contends that current psychiatric disabilities are the result of service in Vietnam. Specifically, he asserts that he was exposed to trauma by transporting deceased bodies and injured soldiers during his active service in Vietnam. The service medical records do not show symptoms of or treatment for any psychiatric disabilities during active duty. During VA examination in May 2010, the examiner, a Psychologist, diagnosed the Veteran with chronic, severe PTSD and major depressive disorder secondary to PTSD. The examiner stated that the Veteran's PTSD symptoms were caused by Vietnam traumas including, exposure to traumatic events in Vietnam, to which the Veteran responded with feelings of helplessness and horror. During this examination, the examiner specifically identified witnessing deceased soldiers in transit back to base as a stressor causing the Veteran's psychiatric conditions. As discussed previously, the Court stated in its August 2020 memorandum decision that the Veteran's unit records corroborate his assertions of having transported deceased troops from Vietnam. The Board is bound by this favorable finding. The Board assigns great probative value to the May 2010 VA medical opinion because of the training, experience, and thoroughness of the examiner. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The May 2010 VA opinion was made upon a review of the record, was consistent with the evidence in the case, and provided adequate reasons and basis in support of the conclusion. The May 2010 examiner opined that the Veteran met the diagnostic criteria for PTSD which, in the examiner's opinion, was directly related to the traumatic incidents he experienced while on active duty service during Vietnam. The opinion of the May 2010 examiner is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The examiner specifically identified and discussed the Veteran's contentions and theory concerning service and the claimed disability. Thus, the Board finds the May 2010 medical opinion to be competent and credible. Because of the detail and thoroughness of the May 2010 opinion, the Board finds that the Veteran's claimed PTSD is related to service. Taken altogether, the Board finds that the necessary elements for service connection for PTSD have been met. The evidence of records shows a current psychiatric diagnosis of PTSD, a now confirmed in-service stressor, and a link between current symptoms and the in-service stressor. Accordingly, based on the foregoing, and resolving doubt in the Veteran's favor, the Board finds the competent medical evidence supports a finding that PTSD is etiologically related to active service. Therefore, service connection for a psychiatric disability, to include PTSD, is warranted. Accordingly, service connection for PTSD is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is remanded. The Veteran seeks service connection for bilateral upper and lower extremity peripheral neuropathy secondary to diabetes mellitus and has been awarded service connection for diabetes mellitus herein. The Board acknowledges that the medical evidence of record does show the Veteran as being diagnosed with diabetic peripheral neuropathy. However, as the record currently stands, it is unclear which extremity or extremities have been associated with the diagnosed neuropathy. The Veteran has not been provided a VA examination for his claimed peripheral neuropathy. As such the Board finds that a VA examination is necessary to provide clarity and to properly diagnose the claimed neuropathic disability. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). Because the Veteran's claimed disabilities may have been caused by service and/or a service-connected disability, the Board finds that a VA opinion to diagnose and determine any relationship between the Veteran's claimed conditions and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for a thyroid disorder is remanded. 3. Entitlement to service connection for a sleep disorder is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claims of entitlement to service connection for a thyroid disorder and service connection for a sleep disorder. Medical records show that the Veteran is currently diagnosed with hypothyroidism. Medical records also show the Veteran as being diagnosed with mild obstructive sleep apnea. The Veteran contends that his currently diagnosed conditions are secondary to his service-connected diabetes mellitus. The Veteran has been awarded service connection for diabetes mellitus herein; however, the Veteran has not been provided a VA examination which addresses any relationship between his claimed disabilities and the now service-connected diabetes mellitus. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon, 20 Vet. App. 79. Because the Veteran's claimed disabilities may have been caused by service and/or a service-connected disability, the Board finds that a VA opinion to determine any relationship between the Veteran's claimed conditions and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy, 1 Vet. App. 78; Bell, 2 Vet. App. 611. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of these claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for all claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. 2. Schedule the Veteran for a VA peripheral neuropathy examination to diagnose and determine the nature and etiology of the claimed bilateral lower and upper extremity neuropathy. The examiner must review the claims file, including this Remand and the lay evidence of record and should indicate that review in the examination report. Exposure to herbicide agents during service in Vietnam is presumed. After reviewing the claims files, the examiner is asked to do the following: 1) Diagnose the specific extremities associated with the Veteran's conceded peripheral neuropathy. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any peripheral neuropathy is etiologically related to active service or any event, disease, or injury during service, including whether the any peripheral neuropathy (1) began during active service, (2) is related to presumed herbicide agent exposure, (3) manifested within one year after separation from service, (4) was noted during service with continuity of the same symptomatology since service, (5) was proximately caused by any service-connected disability or treatment for any service-connected disability, to include diabetes mellitus, or (6) was aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability, to include diabetes mellitus. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. The examiner is advised that the absence of a diagnosed condition from the list of disabilities which are presumed to be the result of exposure to herbicide agents is not a sufficient explanation for a negative opinion. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of diagnosed hypothyroidism. The examiner must review the claims file, including this Remand and the lay evidence of record and should indicate that review in the examination report. Exposure to herbicide agents during service in Vietnam is presumed. After reviewing the claims files, the examiner should opine: 1) Whether it is at least as likely as not (50 percent or greater probability) that any thyroid disorder is etiologically related to active service or any event, disease, or injury during service, including whether the thyroid disorder (1) began during active service, (2) is related to presumed herbicide agent exposure, (3) manifested within one year after separation from service, (4) was noted during service with continuity of the same symptomatology since service, (5) was caused by any service-connected disability or treatment for any service-connected disability, to include diabetes mellitus, or (6) was aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability, to include diabetes mellitus. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. The expert is advised that the absence of a diagnosed condition from the list of disabilities which are presumed to be the result of exposure to herbicide agents is not a sufficient explanation for a negative opinion. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of currently diagnosed obstructive sleep apnea. The examiner must review the claims file, including this Remand and the lay evidence of record, and should note that review in the examination report. The Board notes that a current diagnosis of obstructive sleep apnea has been conceded by VA. After conducting a review of the claims files, the examiner should opine: 1) Whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is etiologically related to active service or any event, disease, or injury during service, including whether sleep apnea (1) began during active service; (2) is related to presumed herbicide agent exposure; (3) was noted during service with continuity of the same symptomatology since service; (4) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to include diabetes mellitus, tinnitus, and/or PTSD, or (5) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for any of the service-connected disabilities, to include diabetes mellitus, tinnitus, and/or PTSD. The examiner should discuss any significance of the lay statements regarding the Veteran's sleeping patterns, snoring, and fatigue during and after service on the current disability. A clearly stated rationale for each opinion offered should be provided and must not be based on the lack of an in-service record of the claimed disability. Neely M. Peden Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.