Citation Nr: 22013191 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 19-24 980 DATE: March 8, 2022 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for non-Hodgkin lymphoma (NHL), to include as due to herbicide agent exposure and/or other chemical exposure, is remanded. Entitlement to service connection for diabetes, including as due to herbicide agent exposure and/or other chemical exposure, is remanded. Entitlement to service connection for bilateral upper extremity neuropathy is remanded. Entitlement to service connection for bilateral lower extremity neuropathy is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his tinnitus is the result of his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1964 to September 1964. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2017 Department of Veterans Affairs (VA) rating decision. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2021. A transcript of that hearing is of record. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is seeking service connection for tinnitus, which he asserts is due to military noise exposure during his active service. The Veteran's experienced military noise exposure is consistent with his military occupational specialty as heavy weapons infantry. Tinnitus is a type of medical condition with symptoms (ringing in the ears) that lay persons are qualified to observe. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the probative value of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds no reason to doubt the Veteran's credibility. Given this conclusion, the Board will review his statements as to the cause of his tinnitus. At the July 2021 Board hearing, the Veteran testified that his tinnitus began during his active service but did not report his symptoms. When weighing the evidence of record, the Board finds that the evidence for and against the Veteran's claim is at least evenly balanced ("in relative equipoise"). In these circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran's favor. Accordingly, the Veteran's claim for service connection for tinnitus is granted. REASONS FOR REMAND Regarding the Veteran's service connection claim for bilateral hearing loss, the Veteran asserted that his bilateral hearing loss was due to his active service. He testified that he was exposed to weapons fire without hearing protection during his active service. Prior to October 31, 1967, service department audiometric results were reported in standard units set forth by American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO) American National Standards Institute (ANSI). The Veteran had an in-service audiogram at his December 1963 entrance physical, at which time auditory thresholds were recorded. While the Veteran's separation examination did not contain an audiogram, in April 1968, about four years after his separation from active service, an audiogram was performed during his reserve service, and auditory thresholds were recorded. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. However, because it is unclear whether such thresholds were recorded using ASA units or ISO-ANSI units at either service audiogram, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. The Veteran was afforded a VA examination in September 2017. However, the examiner apparently did not consider the ASA to ISO-ANSI unit conversion when discussing the Veteran's audiograms in service. Neither the Veteran's December 1963 entrance audiogram nor the April 1968 reserve service audiogram specify whether the testing was conducted according to ASA or ISO-ANSI standards. Under VA guidelines, for audiometry between January 1, 1967 and December 31, 1970, when the test does not indicate which standard was used, the examiner should consider the data under both ASA and ISO-ANSI standards. When this is done, the audiograms show that the Veteran had a 15 decibel or greater shift at the 500, 1000, and 2000 hertz levels. Accordingly, the opinion sought on remand should include a rationale that addresses the recorded metrics under both standards where appropriate, relying on the unit measurements most favorable to the Veteran's appeal. Regarding the Veteran's service connection claims for NHL and diabetes with peripheral neuropathy, the Veteran asserts that he was exposed to herbicide agents, other pesticides, heavy volatile organic compounds, petroleum products, and/or heavy metals while stationed at Fort Jackson, South Carolina, Fort Gordon, Georgia, Fort Ord, California, Fort McCoy, Wisconsin, Fort Greely, Alaska, and Fort Lewis, Washington. In an August 2019 statement, the Veteran described his asserted exposures at the above duty stations in detail. He also submitted multiple articles describing exposures at these duty stations. At the February 2021 Board hearing, he testified that he was exposed to herbicide agents and other chemicals at his duty stations. He testified that chemicals were sprayed on the vegetation. He testified that it would rain, and he would use the water on base for food preparation and would sleep on the wet ground. He testified that he was exposed to chemicals such as teargas, chlorine gas, explosives, herbicide agents, heavy petroleum, and metals. In August 2017, VA determined that the Veteran was not exposed to herbicide agents at Fort Gordon or Fort Lewis. Unfortunately, VA did not consider the other asserted chemical exposures nor consider any herbicide agent exposure at the Veteran's other duty stations. The Veteran submitted positive opinions from his physicians Drs. A.V., K.S,, and C.W. Unfortunately, these opinions were based on the Veteran's reported exposures in service, which have not yet been confirmed. Therefore, VA has not yet adequately developed the claim with respect to the Veteran's theories of entitlement. Specifically, the record does not include adequate development or findings regarding exposure to herbicide agents, other pesticides, heavy volatile organic compounds, petroleum products, heavy metals, teargas, chlorine gas, and/or explosives, or adequate development of medical evidence regarding whether any of the claimed disabilities may be related to these asserted exposures. If exposure to such elements in service is shown, a medical opinion addressing whether any of the claimed disabilities (NHL, diabetes, and peripheral neuropathy of all four extremities) may be related to such exposures would be necessary. As such, a remand is necessary to attempt to verify if the Veteran's duties at the above duty stations exposed him to herbicide agents, other pesticides, heavy volatile organic compounds, petroleum products, and/or heavy metals, and if so, whether the NHL, diabetes, and/or peripheral neuropathy of all four extremities may be related to such exposures. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, obtain all outstanding VA and private medical records that pertain to the Veteran's bilateral hearing loss. 2. Then, schedule the Veteran for a VA examination to determine the nature and likely cause of his bilateral hearing loss. The examiner should provide an opinion responding to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss either began during or was otherwise caused by his active service? Why or why not? The examiner should discuss whether the Veteran's in-service audiograms were reported in the ASA standard or the ISO-ANSI standard and if any of the audiograms are invalid. The examiner should also address the threshold shifts in the Veteran's hearing between his active service and reserve service, the September 2017 VA examiner's opinion, and the Veteran's lay statements regarding his bilateral hearing loss. 3. Regarding the Veteran's service connection claims for NHL, diabetes, and peripheral neuropathy of all four extremities, arrange for all development in the matter deemed necessary, and make formal findings for the record regarding the occurrence, nature, and extent of the Veteran's asserted exposures to herbicide agents, other pesticides, heavy volatile organic compounds, petroleum products, heavy metals, teargas, chlorine gas, and/or explosives. 4. If, and only if, the Veteran is determined to have been exposed to herbicide agents, adjudicate the service connection claims for NHL, diabetes, and peripheral neuropathy of all four extremities. 5. If, and only if, the Veteran is determined to have not been exposed to herbicide agents, but was exposed to pesticides other than herbicide agents, heavy volatile organic compounds, petroleum products, heavy metals, teargas, chlorine gas, and/or explosives during his active service, forward the record to an appropriate physician for review and an advisory medical opinion regarding the likely cause of the Veteran's NHL, diabetes, and peripheral neuropathy of all four extremities, and specifically whether they were related to any established exposures in service. The consulting physician should offer an opinion that responds to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's NHL, diabetes, and/or peripheral neuropathy of all four extremities were incurred or aggravated during the Veteran's active service, to include as due to any exposure in service that has been established, as acknowledged by the AOJ? The examiner should address the medical articles submitted by the Veteran regarding materials at each of his duty stations, the findings and opinions of the Veteran's physicians, and the Veteran's lay statements regarding the cause of his NHL, diabetes, and peripheral neuropathy of all four extremities. [CONTINUED ON NEXT PAGE] If the Veteran's NHL, diabetes, and/or peripheral neuropathy of all four extremities were less likely than not due to the Veteran's active service, to include as due to any exposure in service acknowledge by the AOJ, then identify the likely cause of the Veteran's NHL, diabetes, and/or peripheral neuropathy of all four extremities. VICTORIA MOSHIASHWILI 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.