Citation Nr: 22000293 Decision Date: 01/04/22 Archive Date: 01/04/22 DOCKET NO. 14-27 971A DATE: January 4, 2022 ORDER Entitlement to service connection for tinnitus is granted. REMANDED The application to reopen a claim of entitlement to service connection for diabetes mellitus type II is remanded. The application to reopen a claim of entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. The application to reopen a claim of entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a diplopia disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity neurologic is remanded. Entitlement to service connection for left lower extremity neurologic is remanded. Entitlement to service connection for urinary polyuria is remanded. Entitlement to service connection for low testosterone disability is remanded. Entitlement to service connection for right leg scar is remanded. Entitlement to service connection for gastritis is remanded. Entitlement to service connection for enteropathy is remanded. Entitlement to service connection for macular degeneration is remanded. Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. FINDING OF FACT Tinnitus is attributable to service. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1968 to December 1971. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, air, or space service. 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Tinnitus The Veteran contends tinnitus started in service, that he was exposed to demolitions, aircraft, and diesel engines without ear protection. The Veteran currently has tinnitus. See, e.g., February 2010 VA examination. A VA examination report dated in April 1973 noted ear infections in 1970 (service treatment records note external ear infection in 1970, and May 1970 and November 1971) and exposure to jet aircraft engines and runups and disease generators, reported as exposure to significant noise by the VA examiner. The examiner diagnosed otitis externa, quiescent, and high frequency hearing loss, noise induced, probable. The Board finds the Veteran's report of noise exposure during service is consistent with the record. Tinnitus may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falcone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an organic disease of the nervous system under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is evidence of in-service noise exposure, reports of intermittent tinnitus during service, and reports of a continuity of symptomatology from service. While the Board does note that service treatment records do not document any relevant complaints or diagnoses, considering the credible report of in-service noise exposure, the Veteran's competence to identify tinnitus, and the reports of onset in service and continuity thereafter, the Board concludes that entitlement to service connection is warranted. The Board notes there is an October 2020 VA and February 2010 opinion regarding tinnitus in which the examiner concluded that it was less likely that the Veteran's tinnitus was related to service and provided a rationale for that opinion. This was based on VA examination dated approximately one and half years after service, in April 1973 and that no tinnitus was documented until 1989. However, the Board does not find the opinion entitled to greater weight than the evidence that tinnitus was incurred in service. REASONS FOR REMAND 1. - 3. Reopening based on new and material evidence for the claims of entitlement to service connection for diabetes mellitus, type II; for post-traumatic stress disorder (PTSD); and skin disability. 4. 18. Service connection for hypertension, GERD, right and left upper extremity peripheral neuropathy, right and left lower extremity neurologic disability, urinary polyuria, right leg scar, gastritis, enteropathy, diplopia, macular degeneration, coronary artery disease, a low testosterone disability, and an acquired psychiatric disorder other than PTSD Of record are VA treatment records, over 1000 pages, from January 2018 onwards and approximately two hundred pages of VA treatment records dated prior to January 2018, mostly from 2007 and 2008 and from late 2011 to the middle of 2012. Many documents of record ((Supplemental) Statement(s) of the Case, rating decisions, etc.) note a number of VA treatment records from the Gainesville VA Medical Center, from prior to January 2018, as far back as the 1990s, that are not of record. An August 2012 letter from the Veteran's then representative noted that the Veteran's VA treatment records from Gainesville Veterans Medical Center numbered some 3655 pages dated from January 1996 to August 2012. VA treatment records that have been obtained reference treatment that occurred throughout the 2000s and that the Veteran established care with the Gainesville Medical Center in 1998. These records should be obtained. The Veteran claims he served in Vietnam. As noted by the prior Board remand in February 2019, in a September 2018 informal hearing presentation and elsewhere in the file, it is argued that the Veteran's Vietnam assignment was classified. His representative noted a February 1970 written request for transfer to combat duty with endorsement from three levels of command. In April 1970, he was transferred to a temporary additional duty (TAD) assignment. The representative indicated that the Veteran's service records were relatively blank for the next several months until his return from the TAD assignment and his imminent discharge. The Veteran reported that his classified duties involved interactions with reconnaissance Marines and performing classified missions which involved demolitions. The representative noted that the Veteran's personnel records did not indicate that he had received training for small unit operations, so it seemed odd that he was assigned to an Air-Naval Gunfire Liaison Company (ANGLICO) unit for the reserve period following his active service. In March 2005, the National Personnel Records Center (NPRC) reported that there was no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam. The Veteran's DD Form 214 indicates that he had one year, nine months, and six days of foreign and/or sea service. The Veteran requested that he be transferred to the Fleet Marine Force, Pacific (FMF Pac) Ground Forces (MCC 159) for duty in February 1970. He certified that he had no restrictions which might prevent him from being assigned to a combat zone. This request was endorsed by three levels of command. Portions of three pages in the Veteran's personnel record appear to have been redacted. They indicate some connection between the Veteran and the 1st Battalion (REIN), 3d Marines, 1st Marine Brigade, Fleet Marine Force, in February 1970, and the headquarters of the Provisional Service Battalion in August 1971. His records also indicate that he was assigned to the 4th ANGLICO for his reserve service. In a statement received in August 2005, the Veteran reported that he was with the FMF and served in and out of Vietnam on multiple occasions, while attached to the 3rd Marine Division from 1968 to 1970. A July 2007 deferred rating decision states that the 3rd Marine Division operated in Vietnam from May 1965 to November 1969. Since November 1969, it had been located at Camp Courtney in Okinawa, Japan. In January 2008, the Veteran reported that he was in Vietnam during monsoon season, 1969, when he was engaged by the "243 RV." In April 2008, he added that he was with the 3rd Engineers for the 1st Marines in 1969. In April 2012, he reiterated his contention that he had served in Vietnam. He indicated that he served with the 1st Marines in the 3rd Engineers. In June 2012, the Veteran reported that he performed search and destroy missions and fixed equipment while in Vietnam. He flew to Vietnam from Okinawa, Japan. In the remand, the Board observed that the Adjudication Procedures Manual provides guidance on how to research the service of Marine Corps veterans as to whether they served in the Republic of Vietnam, to include contacting the National Archives and Records Administration (NARA) as the JSRRC does not research Marine Corps unit records. While the NPRC reported in March 2005 that there was no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam, this report was completed prior to receipt of the Veteran's specific contentions regarding the facts and circumstances surrounding his reported Vietnam service. Further, based upon the date stamp of August 8, 2005, on his list of duty locations, it is possible that the NPRC report was completed prior to receipt of the Veteran's complete service personnel records. In the prior remand, the Board also observed that, in November 2012, the appellant reported that his duties took him to San Clemente Island, off the coast of California. He reported that he saw residue which indicated that the island had been sprayed. There were dead animals and no grass. The dust made him cough and gag. He indicated that he was exposed to mustard gas and radiation. He also worked on Doppler radar systems. In January 2013, he contended that he was exposed to ionizing radiation and Agent Orange on San Clemente Island. Thus, appropriate efforts should also be undertaken to ascertain whether the appellant was exposed to any hazardous materials, to include herbicide agents, on San Clemente Island. The representative's October 2021 Appellant's Brief provides a good overview of the post-remand development. As noted by the representative, on August 25, 2020, the AOJ sent a request to the Department of Defense (DoD) for review of Agent Orange inventory and usage at San Clemente Island. On August 26, 2020, the DoD responded to the AOJ request with the following: DoD has not identified any location on Camp Pendleton where Agent Orange was used, tested, stored, or transported. Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. Additionally, Camp Pendleton was not on the Agent Orange shipping supply line, which went directly from storage at Mobile, Alabama, or Gulfport, Mississippi, to South Vietnam via merchant ships. The Board notes San Clemente Island is part of Naval Base Coronado, a separate base from the Marine Corps Base Camp Pendleton. On the same date the AOJ contacted the Veteran to obtain additional information regarding his herbicide agent exposure and PTSD stressor. The AOJ noted that, after calling the Veteran, the Veteran reported engagement with the 242 RV while in Vietnam and the timeframe that he provided was that this was during the 1969 monsoon season. Further, the Veteran stated he, while he had some difficulty with his memory, he was most likely with the 3rd Combat Engineer Battalion, 5th Marine Division, FMF Company B Camp Pendleton. While reviewing his record and rehearsing events and weather patterns in Vietnam, the Veteran believed that the date of the engagement with the 242 RV most likely during the winter monsoon and around December 1969. On August 27, 2020, the AOJ sent a letter to the Marine Corps Archives and Special Collections to request assistance with confirming the Veteran's stressor. On the same date the AOJ sent an email to the Nancy Whitfield with the Marine Corps archives requesting information on the Veteran's service on August 28, 2020, the AOJ sent a second letter to the Marine Corps Archives with additional information regarding his stressor statement. On the same date the AOJ sent a follow up email to Nancy Whitfield with the updated unit information and noted the following: I am requesting chronological records for an incident I submitted yesterday but for a different unit. This Veteran appears to have operated with a unit whose missions in Vietnam were classified. I reviewed his records again and determined it would be prudent to attempt to obtain the records for the following unit. Any assistance you can provide will of course be greatly appreciated. On January 21, 2021, the AOJ received a response from the Records Research Center. The RRC provided the following response: Military Records Research Center is unable to research this request because the circumstances of exposure were not provided. Please see M21-1 IV.ii.1. H.3.c; IV.ii.1.H 4. b; and IV.ii.1.H.6.a. If the information is available, please resubmit your request. There was no response from Nancy Whitman in the file, nor was there a resubmission to the Records Research Center pursuant to the response on January 21, 2021. The representative further noted there was a procedure for obtaining relevant information laid out in M21-1. VIII.iv.9.A.1.b -Adjudicating Claims Related to Special Operations Incidents. In essence, there was a failure to undertake appropriate development procedures with regards to the Veteran's contended service in the Republic of Vietnam and to hazardous materials, to include herbicide agents, on San Clemente Island, as requested by the last Board remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from 1996 to the present. 2. Undertake appropriate development procedures as to the Veteran's contended service in the Republic of Vietnam. It should be noted that the appellant is a Marine Corps Veteran. In addition to the summary of evidence and argument contained in this REMAND, attention is directed to the portions of three pages in the Veteran's personnel record which appear to have been redacted. They appear to indicate some connection between the appellant and the 1stBattalion (REIN), 3d Marines, 1st Marine Brigade, Fleet Marine Force, in February 1970, and the headquarters of the Provisional Service Battalion in August 1971. His records also indicate that he was assigned to the 4th ANGLICO for his reserve service. An explanation of these documents and their relevance, if any, would be helpful to the Board. Specifically, resubmit the request made to Records Research Center conforming to the per the response on January 21, 2021 and obtain a response from Marine Corps archives or other appropriate recordkeeper regarding the Veteran's alleged Vietnam service. Consideration should also be made if the process for adjudicating claims related to special operations incidents under the M21-1 should be undertaken. 3. Undertake development necessary to determine if herbicide agents were used San Clemente Island, Naval Base Coronado. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.