Citation Nr: 21040572 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-12 681 DATE: July 6, 2021 ORDER Entitlement to service connection for lung cancer, as due to herbicide agent exposure, is granted. Entitlement to service connection for diabetes mellitus, type II, (DM), as due to herbicide agent exposure, is granted. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during service. 2. The Veteran's lung cancer and DM are related to his in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lung cancer, as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.305, 3.307, 3.309. 2. The criteria for entitlement to service connection for DM, as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.305, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to March 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from June 2015 and November 2017 rating decisions issued from Department of Veterans' Affairs (VA) Regional Office (RO). Following the RO's denial of service connection for the claims addressed herein, the Veteran timely appealed requesting a hearing before the Board. Said hearing occurred in December 2020, a transcript of which has been associated with the claims file and reviewed. The Veteran submitted additional evidence to the record following the hearing. As the Veteran submitted the additional evidence of record, waiver of RO review in the first instance has been presumed. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. The United States Court of Appeals for the Federal Circuit (Court) held that 38 U.S.C. § 1116 unambiguously expressed Congress' intent that those who served in the 12 nautical mile territorial sea of the "Republic of Vietnam" are entitled to the presumption of herbicide exposure. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). The Board further notes that, on June 25, 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019, which extends the presumption of exposure to herbicide agents to those Veterans who served within the 12 nautical miles of Vietnam. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019) (effective January 1, 2020). If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service, the Veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). Of relevance, the list of diseases associated with exposure to certain herbicide agents includes lung cancer and DM. 38 C.F.R. § 3.309(e). When service connection cannot be established on a presumptive basis, the Court has held that the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (1994). The elements of direct service connection are: "(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," also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for lung cancer, as due to herbicide agent exposure, is granted. 2. Entitlement to service connection for diabetes mellitus, type II, (DM), as due to herbicide agent exposure, is granted. The Veteran contends he has lung cancer and DM caused by herbicide agent exposure during service. The Board finds service connection for both claims is warranted on a presumptive basis. Following the rating decisions on appeal, development continued regarding the Veteran's contended herbicide agent exposure while serving aboard the USS Waddell from January 1971 to February 1974. Indeed, in February 2020, a VA memorandum was associated with the claims file reflecting that the Veteran's exposure to herbicides is conceded based on his nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. See February 2020 memorandum. Thus, herbicide agent exposure is conceded. The Veteran's treatment records reflect diagnosis of lung cancer in March 2018 with subsequent treatment. See December 2020 treatment records. Treatment records also reflect diagnosis of and treatment for DM since approximately 2010. See January 2020 VA treatment records. These diagnoses are consistently corroborated throughout the Veteran's treatment records. As previously mentioned, lung cancer and DM are conditions for which the presumptions related to herbicide agent exposure apply. Thus, in light of conceded herbicide agent exposure, the Board finds service connection for both lung cancer and DM is warranted on a presumptive basis. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. 2. Service connection for tinnitus is remanded. The Veteran contends his bilateral hearing loss and tinnitus was caused by or incurred during service. The Board finds the evidence of record is insufficient to resolve his claims. The Veteran was afforded a VA examination in June 2015 to determine the nature and etiology of any hearing loss and/or tinnitus. The examiner opined the Veteran's bilateral hearing loss and associated tinnitus is less likely than not related to service, based in-part, on the reasoning that there was "no historical evidence to support that it was incurred during active service." The examiner, however, failed to address and reconcile the Veteran's service treatment records (STRs) containing complaint of vertigo in 1970. Additionally, the Veteran previously stated that he had tinnitus "while in service" but was unaware that it was abnormal until a civilian physician diagnosed him after separation. These lay statements remain unaddressed. Further, while the examiner noted the Veteran experienced post-separation noise exposure elsewhere in the report, the VA examiner relied upon the Veteran's normal audiogram results at the time of separation that did not show significant changes from his entrance audiogram without adequately addressing whether the Veteran's contended in-service noise exposure is related to his current hearing loss disability. Thus, remand is necessary to obtain an addendum opinion that also addresses the Veteran's STRs noting vertigo and lay statements regarding symptom onset. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993); see also Miller v. Wilkie, 32 Vet. App. 249 (2020). Service connection for tinnitus is also remanded as inextricably intertwined with the Veteran's service connection claim for bilateral hearing loss because the June 2015 VA examiner opined that the Veteran's tinnitus is at least as likely as not a symptom associated with hearing loss. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, service connection for tinnitus is remanded as inextricably intertwined with the Veteran's pending service connection claim for bilateral hearing loss. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to an appropriate examiner for review. The necessity of an in-person examination is left to the discretion of the examiner. The examiner shall render an addendum opinion, including rationale, addressing whether the Veteran's bilateral hearing loss and tinnitus was at least as likely as not caused by or incurred during service, to include his contended in-service noise exposure. In so opining, the examiner is directed to address and consider the Veteran's service treatment records referencing vertigo in 1970 as well as his reports of noise exposure during service including being surrounded by heavy gun fire. The examiner is also directed to address and consider the Veteran's lay statements regarding tinnitus onset during service that was not diagnosed until after separation. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page) 2. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.