Citation Nr: 21031940 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-27 818 DATE: May 25, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, or other chemical exposure is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to diabetes mellitus, type II, herbicide agent exposure, or other chemical exposure is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to diabetes mellitus, type II, herbicide agent exposure, or other chemical exposure is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to diabetes mellitus, type II, herbicide agent exposure, or other chemical exposure is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to diabetes mellitus, type II, herbicide agent exposure, or other chemical exposure is remanded. FINDING OF FACT The Veteran's tinnitus is the result of acoustic trauma sustained during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 2019, the Board remanded the above issues for additional development. The case has since returned to the Board for appellate review. The Board also notes that, in August 2019, the Veteran's service connection claim for erectile dysfunction was remanded for additional development. His service connection claim for erectile dysfunction was subsequently granted in a June 2020 rating decision. As this grant represents the full grant of benefits sought on appeal, this issue is no longer before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Service Connection Service connection may be granted 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. To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present 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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for tinnitus is granted. The Veteran contends that his tinnitus is related to noise exposure during his military service. The Veteran reported that he suffered acoustic trauma while working with the artillery unit and working around the launcher with the turbine engine, resulting in his tinnitus. See May 2015 lay statement. First, the Board notes that the Veteran has a diagnosis of tinnitus. See October 2020 VA examination. Therefore, the first element of service connection, a diagnosis, has been met. Second, as noted above, the Veteran contends that he suffered acoustic trauma due to his exposure to noises while in the artillery unit. In support of his contention, the Board notes that the Veteran's DD-214 indicates that he was assigned to the Battery A 3d Battalion 81st Field Artillery as a sergeant crewman. See DD-214; see also September 2016 representative statement. His duties included that of a "boom operator" and "firing set operator." He also received the National Defense Service medal, Armed Forces Expeditionary Medal, and Expert Badge w/M16. As the Veteran's military occupational specialty (MOS) and various commendations support the Veteran's competent and credible statements regarding his noise exposure, the Board finds that the second element of service connection, and in-service incurrence, has been met. Therefore, the only remaining issue is whether a nexus may be established. In December 2015, the VA examiner opined that the Veteran's tinnitus was less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The examiner reasoned that there were no complaints of tinnitus were found in the Veteran's service treatment records (STRs). The examiner also noted that there were no significant or permanent decreases in hearing sensitivity was found between enlistment and separation exams. Research suggests that, based on current knowledge of cochlear physiology, there is no sufficient scientific basis for the existence of delayed-onset hearing loss or tinnitus. The examiner concluded that, since Veteran's hearing was within normal limits at separation from active duty, it is less likely than not that his tinnitus was caused by or is the result of an event in military service. The examiner noted that it is commonly accepted that tinnitus will take place at the time of the noise exposure, or soon afterwards, but not years later. In October 2020, the VA examiner opined that the Veteran's tinnitus was less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The examiner reasoned that, although his military occupation specialty (MOS) had a high probability of noise exposure, the onset of his tinnitus was reportedly about 16 years post-separation. The examiner noted that there was no report of tinnitus in his service treatment records (STRs) and/or at separation. In cases of noise-induced tinnitus, at the time of the hazardous noise exposure, tinnitus is typically noted. The examiner noted that the Veteran could not recall experiencing any tinnitus at the time of his noise exposure, and the current literature does not support late onset noise-induced tinnitus. The Board finds the December 2015 and October 2020 VA opinions inadequate, as the VA examiners' opinions did not address the Veteran's May 2015 reports of being exposed to noise while working around a launcher with the turbine engine. The evidence in favor of the claim includes the Veteran's statements that his tinnitus is related to his military service. The Veteran stated that he has experienced ringing in his ears since his acoustic trauma in service. The Veteran is competent to report symptoms such as ringing or buzzing in his ears as this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, the Veteran is competent to identify a disorder such as tinnitus for diagnostic purposes. 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 310; Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Board finds the Veteran's assertions regarding the onset of his tinnitus to be credible. The Board also finds the Veteran's opinion related to his tinnitus probative. Upon review of the record, the Board finds that the preponderance of the evidence supports a finding that the Veteran's current tinnitus is related to service. Accordingly, the Board finds that service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his hearing loss is due to related to noise exposure during his military service. The Veteran reported that he suffered acoustic trauma while working with the artillery unit and working around the launcher with the turbine engine. See May 2015 lay statement. At the outset, the Board notes that the Veteran has a diagnosis of bilateral sensorineural hearing loss. See October 2020 VA examination. Pursuant to the March 2019 Board remand, a VA opinion regarding the etiology of the Veteran's hearing loss was obtained in October 2020. In October 2020, the VA examiner opined that the Veteran's bilateral hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran enlisted with pre-existing hearing loss in both ears. Therefore, the examiner concluded that his current hearing loss is less likely than not due to in-service acoustic trauma. The Board finds the October 2020 VA opinion inadequate. In finding that the Veteran's hearing loss preexisted service, the October 2020 VA examiner did not address whether his hearing loss "clearly and unmistakably (undebatable)" preexist the Veteran's service. In addition, the examiner did not address the Veteran's reports that he suffered acoustic trauma while working with the artillery unit and working around the launcher with the turbine engine. Furthermore, the examiner did not consider the research submitted by Dr. S. G. K. concerning delayed onset hearing loss. While the Board regrets the additional delay, a remand is necessary to obtain an adequate opinion to address the etiology of the Veteran's bilateral hearing loss. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, or other chemical exposure is remanded. The Veteran contends that his diabetes is caused by exposure to herbicide agents while stationed at Camp Colbern in Korea, including dioxin through soil and water contamination that remained present years after its use. The Veteran also states that his diabetes is caused by chemical exposure from his duties inspecting, transporting, and servicing nuclear missiles without protective equipment. The Board notes that the Veteran has a diagnosis of diabetes mellitus, type II. See August 2016 VA examination. In addition, during the pendency of the appeal, the Veteran advanced another theory of entitlement to service connection for his diabetes. Specifically, the Veteran and his representative argue that his diabetes is secondary to his service-connected unspecified trauma and stressor related disorder. See April 2021 correspondence. In support of this theory, the Veteran has his representative have submitted articles regarding the relationship between diabetes and psychiatric disorders. As an opinion has not yet been obtained regarding the Veteran's theory that his diabetes his related to his service-connected unspecified trauma and stressor related disorder, a remand is necessary to obtain a VA opinion to address the Veteran's argument that his diabetes is related to his service-connected mental health condition. 3. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to diabetes mellitus, type II, herbicide agent exposure, or other chemical exposure is remanded; entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to diabetes mellitus, type II, herbicide agent exposure, or other chemical exposure is remanded; entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to diabetes mellitus, type II, herbicide agent exposure, or other chemical exposure is remanded; entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to diabetes mellitus, type II, herbicide agent exposure, or other chemical exposure is remanded. The Veteran contends that his peripheral neuropathy in the bilateral upper and lower extremities is caused by exposure to herbicide agents while stationed at Camp Colbern in Korea, including dioxin through soil and water contamination that remained present years after its use. The Veteran also states that these disabilities are caused by chemical exposure from his duties inspecting, transporting, and servicing nuclear missiles without protective equipment. Pursuant to the March 2019 Board remand, a VA opinion regarding the etiology of the Veteran's peripheral neuropathy in the bilateral upper and lower extremities was obtained in March 2019. In March 2019, the VA examiner opined that the Veteran's peripheral neuropathy is related to his diabetes. The Board finds the March 2019 opinion inadequate, as the opinion did not provide rationale concerning the Veteran's contention that his peripheral neuropathy is related to herbicide exposure while stationed in Korea. Therefore, a remand is necessary ot obtain another opinion concerning the etiology of the Veteran's peripheral neuropathy in the bilateral upper and lower extremities. In addition, as there is evidence in the record suggesting a link between the Veteran's diabetes and his peripheral neuropathy, to include the March 2019 VA opinion, the Board notes that the Veteran's service connection claim for diabetes is inextricably intertwined with the Veteran's service connection claims for bilateral peripheral neuropathy in the upper and lower extremities. Therefore, the Veteran's service connection claims for peripheral neuropathy in the bilateral upper and lower extremities are also remanded accordingly with his service connection claim for diabetes. The matters are REMANDED for the following action: 1. BILATERAL HEARING LOSS: Obtain an addendum opinion from an appropriate clinician regarding the Veteran's bilateral hearing loss. The examiner must review the claims file. The examiner is asked to provide a response to the following: Did the Veteran's bilateral hearing loss clearly and unmistakably (undebatable) preexist the Veteran's service? If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) related to service. Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In rendering an opinion, the examiner is requested to address the following: - The Veteran's contention that he suffered acoustic trauma while working with the artillery unit and working around the launcher with the turbine engine - The line of research concerning delayed onset hearing loss conducted by Dr. S. G. Kijawa, including: (1) "Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth" by S. Kujawa, M.D., and M. C. Liberman (2006). J Neurosci. 2006 Feb 15; 26(7): 2115-2123; (2) Kujawa SG, Liberman MC (2009) Adding insult to injury: cochlear nerve degeneration after "temporary" noise-induced hearing loss. J Neurosci. 2009 Nov 11;29(45):14077-85; (3) Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift. JARO 12:605-616; (4) Furman AC, Kujawa SG, Libermann MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates. J. Neurophysiol.110, 577-586. 2. DIABETES: Obtain an addendum opinion from an appropriate clinician regarding the Veteran's diabetes mellitus, type II. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's diabetes mellitus, type II at least as likely as not (50 percent or greater probability) related to service, including exposure to herbicide agents while stationed at Camp Colbern in Korea, including dioxin through soil and water contamination that remained present years after its use? Is the Veteran's diabetes mellitus, type II at least as likely as not (50 percent or greater probability) proximately due to service-connected unspecified trauma and stressor related disorder? Is the Veteran's diabetes mellitus, type II at least as likely as not (50 percent or greater probability) aggravated, i.e., worsened beyond its natural progression, by service-connected unspecified trauma and stressor related disorder? Provide a rationale to support the opinions. In providing the requested opinions, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In addition, the examiner is requested to address the following: - The March 2017 opinion as well as the July 2016 private opinion that suggests the Veteran's diabetes mellitus, type II is related to exposure to herbicides; - A June 2016 VA note stating that the neurologist thinks might be related to diabetes mellitus; - The March 2020 RO determination concerning the Veteran's exposure to herbicides while stationed in Korea; and - The Veteran and his representative's lay statements and submitted articles suggesting a link between diabetes and mental health disorders 3. PERIPHERAL NEUROPATHY IN THE BILATERAL LOWER AND UPPER EXTREMITIES: Obtain an addendum opinion from an appropriate clinician regarding the Veteran's bilateral peripheral neuropathy in the upper and lower extremities. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's bilateral peripheral neuropathy in the upper and lower extremities at least as likely as not (50 percent or greater probability) related to service, including exposure to herbicide agents while stationed at Camp Colbern in Korea, including dioxin through soil and water contamination that remained present years after its use? Is the Veteran's bilateral peripheral neuropathy in the upper and lower extremities at least as likely as not (50 percent or greater probability) proximately due to diabetes? Is the Veteran's bilateral peripheral neuropathy in the upper and lower extremities at least as likely as not (50 percent or greater probability) aggravated, i.e., worsened beyond its natural progression, by diabetes? Provide a rationale to support the opinions. In providing the requested opinions, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In addition, the examiner is requested to address the following: - The July 2016 private opinion suggesting that the Veteran's peripheral neuropathy is related to exposure to herbicides; - The March 2020 RO determination concerning the Veteran's exposure to herbicides while stationed in Korea; and - The March 2019 VA opinion that the Veteran's peripheral neuropathy is related to his diabetes 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, Associate 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.