Citation Nr: 22016191 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 21-00 022A DATE: March 21, 2022 ORDER Entitlement to service connection for residual hypothyroidism, status post Graves' disease, is granted. Entitlement to service connection for thyroid-related ophthalmopathy is granted. Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. REMANDED The claim of entitlement to service connection for claustrophobia is remanded. FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence regarding whether residuals of hypothyroidism are due to herbicide exposure in the Republic of Vietnam. 2. The Veteran's ophthalmopathy is related to thyroid dysfunction. 3. There is an approximate balance of positive and negative evidence regarding whether hearing loss relates to service. 4. There is an approximate balance of positive and negative evidence regarding whether tinnitus relates to service. CONCLUSIONS OF LAW 1. The criteria for service connection for residual hypothyroidism, s/p Graves' disease, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for thyroid-related ophthalmopathy are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The record indicates that the Veteran served on active duty from July 1969 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a February 2019 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a timely notice of disagreement with the decision. Following the March 2020 statement to the case, the Veteran submitted an untimely VA Form 9 in January 2021. See 38 C.F.R. § 20.302. Nevertheless, in the March 2021 certification of appeal to the Board, the RO accepted the appeal and waived the issue of timeliness. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Service Connection The Veteran asserts that exposure to herbicides in the Republic of Vietnam caused a thyroid disorder, which then caused an eye disorder. He also asserts that hearing loss and tinnitus are due to noise exposure experienced in Vietnam. Relevant legal authority Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, 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 active service the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic disorders 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). 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 showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. A veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, several diseases listed under 38 C.F.R. § 3.309 (e) shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113, 38 C.F.R. § 3.307 (d) are also satisfied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, a clear preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Thyroid and eyes The evidence addressing the claims of entitlement to service connection for thyroid and eye disorders consists of lay assertions from the Veteran, service personnel records (SPRs), service treatment records (STRs), a medical journal article discussing herbicide exposure and thyroid disorders, VA and private treatment records, private medical opinions dated in April 2016, June 2016, and March 2019, and a May 2019 VA examination report. For the following reasons, service connection findings are warranted for thyroid and eye disorders. First, the medical evidence documents that the Veteran has residuals of hyperthyroidism to include status post Graves' disease and has thyroid-related ophthalmopathy. This is demonstrated most recently in the May 2019 VA report. Second, the evidence establishes herbicide exposure during service. The Veteran served in the Republic of Vietnam between January and September 1970. A presumption of service connection for the thyroid and eye disorders does not exist here because they are not listed under 38 C.F.R. § 3.309 (e). Nevertheless, the exposure to herbicides may be presumed. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation). Third, a clear preponderance of the evidence does not establish that the thyroid disorder is not related to herbicides exposure. See 38 C.F.R. § 3.303. Certain evidence counters the claim. In the May 2019 VA report, the VA examiner found it unlikely that the thyroid disorder related to service. The examiner noted presumed herbicide exposure, and studies cited by the Veteran linking the exposure to thyroid problems but indicated that insufficient evidence existed for a medical nexus, and that the question "warrants further investigation." Certain other evidence supports the claim. The Veteran submitted into evidence a medical study conducted by VA which indicates a relationship between herbicide exposure and thyroid problems. In the private opinions, the Veteran's treating physician connects herbicides and thyroid problems. In the April 2016 statement, the treating physician indicated that he had been treating the Veteran for his Graves' related thyroid disorder since 2015. The physician cited the VA study linking thyroid problems and herbicides and stated that a "causative risk" existed which should be "acknowledged." In a June 2016 report, the physician stated that, "more likely than not, it is suspected that this patient's history of Graves' related hyperthyroidism and ramifications, is related to Agent Orange exposure as understood by medical literature highlighting the same." Then, in the March 2019 statement, the treating physician reiterated his comments linking herbicides with thyroid dysfunction. Each of the medical opinions addressing the claim is of probative value because each is explained with citation to facts in the record, is based on a review of the claims file, and is based on an examination and interview of the Veteran. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). In sum, the medical evidence addressing the question of medical nexus does not clearly preponderate against the claim. The May 2019 VA examiner found a connection unlikely, but nevertheless recognized the VA study connecting herbicide and thyroid problems and suggested that a connection could be established with further study. So, this opinion does not clearly undercut the claim. The supportive opinions are much stronger in connecting service and problems, moreover. Lastly, the medical evidence indicates eye problems related to hyperthyroidism. See 38 C.F.R. § 3.310. The Veteran's private physician repeatedly connects "resultant compressive ophthalmopathy" to Graves' related hyperthyroidism. Moreover, in the only VA opinion addressing the issue, the May 2019 examiner stated, the "patient's history of thyroid related ophthalmopathy and orbital decompression surgery OU is at least as likely as not due to his history of Graves' disease." Based on the foregoing evidentiary background, the Board cannot find that a clear preponderance of the evidence is against the claims that Graves' related hyperthyroidism relates to herbicide exposure and that ophthalmopathy relates to the thyroid disorder. Indeed, there is an approximate balance of positive and negative evidence regarding these questions. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claims. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Hearing loss and tinnitus Impaired hearing will be considered a disability under VA law when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence showing that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The evidence addressing these claims consists of STRs, SPRs, VA and private treatment records, lay statements, an August 2016 private opinion, and a January 2019 VA examination report and opinion. For the following reasons, service connection findings are warranted for bilateral hearing loss disability and tinnitus. First, the evidence establishes that the Veteran has hearing loss disability and tinnitus. This is demonstrated in the January 2019 VA report, which notes auditory thresholds of at least 40 decibels in each ear and notes a diagnosis of tinnitus. Second, the record establishes that the Veteran was exposed to acoustic trauma during service. He served in the U.S. Army during a period of war in the Republic of Vietnam. Further, he has submitted into evidence lay statements describing noises associated with that service, to include weapons fire, loud explosions, and noises associated with truck driving. Inasmuch as a layperson is competent to report observable symptoms such as loud noises, his statements are probative. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, his assertions are credible because they are consistent with the nature of his service. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). Third, the evidence is in a state of relative equipoise regarding whether hearing loss and tinnitus relate to service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. On the one hand, certain evidence counters the claims. The STRs are negative for hearing loss. The earliest medical evidence of record of hearing loss is dated in the late 2010s, nearly 50 years after service. The Veteran's earliest assertion of service-related hearing loss and tinnitus was received in January 2017. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). And the January 2019 VA opinion counters the claims, finding it unlikely that hearing loss or tinnitus relates to service. In support, the examiner noted that the Veteran worked in food service during service, "a job with low probability of hazardous noise exposure." He reports that he often drove a truck in Vietnam and was exposed to truck noise while waiting on convoys. His pre-induction and induction audiograms show normal hearing, bilaterally. No separation audiogram could be located in VBMS. He does not report experiencing hearing loss or tinnitus while in the military, reporting that both conditions began after separation. There are no complaints of hearing loss or tinnitus in his STRs. Today's audiometric findings show hearing loss consistent with noise-induced hearing loss. The hearing loss is most likely related to many years of working as a machinist. On the other hand, certain evidence favors the claims. In the August 2016 private report, the examiner noted the Veteran's service in Vietnam and his driving a truck as part of his job in food service. The examiner found current hearing loss and tinnitus "definitely related to his military exposure." The examiner also noted that post-service noise associated with work as a machinist "may have affected his ears in addition." Nevertheless, the examiner found it "much more likely than not" that military service contributed to the hearing loss and tinnitus. Each of these opinions is probative because each is explained with citation to facts in the record, is based on a review of the claims file, and is based on an examination and interview of the Veteran. See Bloom, supra. In sum, the Board cannot find that a preponderance of the evidence is against the claims that current hearing loss and tinnitus are due to acoustic trauma during service. Indeed, there is an approximate balance of positive and negative evidence regarding whether the disorders were incurred in service. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claims. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran claims that claustrophobia is secondary to now service-connected hyperthyroidism and eye disability. 38 C.F.R. § 3.310. An examination should be conducted into his claim. The matter is REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development to obtain any outstanding records pertinent to the claim. All records/responses received must be associated with the electronic claims file. 3. Schedule an examination to determine the nature and etiology of claustrophobia. After reviewing the claims folder, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or more) that claustrophobia had its onset during service, or is related to a disease, event, or injury during service? (b). If the answer to (a) is negative, is it at least as likely as not that claustrophobia is due to or caused by service-connected disability? (c). If the answers to (a) and (b) are negative, is it at least as likely as not that claustrophobia has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder(s). The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. (Continued on the next page) Please explain in detail any opinion provided and the supporting rationale. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.