Citation Nr: 22017561 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-44 976 DATE: March 25, 2022 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities to include as secondary to diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities to include as secondary to diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is related to excessive noise exposure during his active service. 2. The Veteran's tinnitus is related to excessive noise exposure during his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1969 to February 1971. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2021 Board Hearing. The claims file contains a transcript of the hearing. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he was exposed to excessive noise during his active service and that the excessive noise exposure caused his current bilateral hearing loss. See November 2021 Board Hearing Tr. at 3-6. The Board concludes that the Veteran has a current bilateral hearing loss disability that is related to excessive noise exposure during his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). January 2018 VA treatment records show the Veteran has a current diagnosis of bilateral hearing loss. The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. See 38 C.F.R. § 3.385. On the audiological evaluation in January 2018, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 35 55 55 LEFT 20 20 30 60 45 Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a June 2018 VA examiner's opinion that the bilateral hearing loss is less likely than not incurred in or caused by the claimed in-service injury. The entire rationale for the opinion was: There is normal hearing on entrance and separation with thresholds too low for any permanent significant shift in hearing thresholds to have occurred from entrance. This is evidence of no permanent auditory damage on active duty. No report of decreased hearing in claims file or at separation. Although noise exposure is conceded and the relationship between noise, auditory damage and hearing loss is well-documented, auditory damage and hearing loss are not conceded based on noise alone therefore a nexus is not established. There are multiple problems with this rationale including, most importantly, the unsupported and unexplained statement that there were "thresholds too low for any permanent significant shift in hearing thresholds to have occurred from entrance" despite the fact that the in-service entrance and separation examinations showed threshold shifts of 15 decibels at 4000 Hz in the right ear and of 15 to 20 decibels at each of the frequencies from 500 Hz to 4000 Hz in the left ear. Moreover, at the time the VA examiner offered that evidence there was a prior opinion of record noting those threshold shifts and explaining that a significant threshold shift occurs "when the hearing threshold has changed 15 db or more relative to the baseline audiogram which is a reliable indicator of permanent hearing loss." See April 2017 VA examiner's opinion. Because the June 2018 VA examiner merely asserts that there was no "permanent significant shift in hearing thresholds from entrance" without acknowledging that there were shifts and without explaining what would be considered a significant shift, the Board affords the June 2018 VA examiner's opinion less probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The April 2017 VA examiner's opinion contains a detailed and factually well-supported rationale for her favorable nexus opinion. As noted, she discussed the in-service audiometric data, explained why the observed 15-20 db shifts in thresholds were significant, and further explained why those shifts, combined with conceded in-service noise exposure, the presentation of the Veteran's current bilateral hearing loss, and relevant medical literature, led her to conclude that the Veteran's current bilateral hearing loss was, at least as likely as not, related to in-service noise exposure. The Board finds the opinion thoroughly and persuasively reasoned and assigns it significant probative value. See Nieves-Rodriguez, 22 Vet.App. at 304. Because the only unfavorable nexus opinion warrants less probative weight and the favorable nexus opinion warrants considerable probative weight, the greater weight of the evidence is decisively in favor of the claim. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus that is related to noise exposure during his active service. The Board concludes that the Veteran has a current disability (tinnitus) that is related to is active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). January 2018 VA treatment records show the Veteran has a current diagnosis of tinnitus. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes the June 2018 VA examiner's opinion that is based on the post-service onset and the assertion, without citation or elaboration, that "[t]he current literature does not support late onset noise-induced tinnitus." Because the examiner found that the Veteran did not have significant threshold shifts (though without explaining why he came to that conclusion or whether that conclusion considered the fact of 15-20 decibel threshold shifts) and that the Veteran's bilateral hearing loss did not relate to service, he did not discuss whether the threshold shifts had significance in the etiology of the tinnitus and did not discuss any possible relationship between the Veteran's hearing loss and tinnitus. Consequently, the opinion is entitled to less probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion obtains probative weight from "factually accurate, fully articulated, sound reasoning for the conclusion"); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."). The evidence in favor of the claim includes an April 2017 VA examiner's favorable opinion. The April 2017 VA examiner accurately recounted the Veteran's allegations and pertinent medical history, including the in-service threshold shift, and explained the medical significance of that information. She then noted that her opinion was based on the Veteran's positive history for noise exposure, her review of the entire record, the current audiological exam, and her professional expertise, that the Veteran's tinnitus was at least as likely as not related to his active service. While the April 2017 VA examiner's opinion is based on the Veteran's representation of an October 1971 onset of tinnitus and he has given varied dates of onset of tinnitus over the years (e.g., October 1971 to the April 2017 VA examiner but "three or four years after I got out of service" at his Board hearing), the Board finds that the examiner's rationale is not dependent on the precise date of the onset of tinnitus, but is based most significantly on the evidence of damage to the Veteran's hearing during service (i.e., the significant threshold shifts). Moreover, the Board recognizes the difficulty of a Veteran precisely recalling the onset of ringing of the ears when, as here, he has consistently reported the onset was decades ago. The Veteran has, on this and other issues, been candid about facts when he could have made allegations more favorable to his claim (e.g., claiming to be in the DMZ rather than within a mile of it, claiming onset of tinnitus during service rather than after service) and he was otherwise a credible witness whose testimony and demeanor indicated he was relaying his recollections of decades old events to the best of his ability. Therefore, the Board finds that his report to the April 2017 VA examiner of an onset in or around October 1971 is at least as likely as not accurate. For all of these reasons, the Board finds that the April 2017 VA examiner's opinion is based on accurate facts and medical history, has a thorough, persuasive rationale, and is entitled to probative value in favor of the Veteran's claim. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current tinnitus is related to his active service. Accordingly, service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicide agents is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for diabetes mellitus, type 2, because the Veteran has not had a VA examination and the evidence is conflicting whether he has a current diagnosis of diabetes. Compare January 2016 VA Radiology Note ("Patient is not diabetic.") with January 2018 VA Audiology Note (noting a medical history of diabetes) and November 2021 Board Hearing Tr. at 6 (testifying that he had been diagnosed with diabetes). The most recent VA treatment records are from 2018, so remand is warranted to obtain updated treatment records and determine whether the Veteran currently has diabetes. There is sufficient evidence of a current disability to meet the criteria for a VA examination. To warrant a VA examination, the evidence should also raise the possibility that the current disability may be associated with an in-service event. There is no question that, if the Veteran was exposed to herbicide agents, the in-service element would be met. Therefore, the Board will address whether there was an in-service event, namely, exposure to herbicide agents as, without that event, remand is unnecessary. While the alleged and known facts are not complicated, the application of controlling law to those facts is quite complicated. The short answer is that there is at least an approximate balance of the evidence on the issue of whether the Veteran served in or near the Korean DMZ during the period April 1, 1968, to August 31, 1971. Consequently, he is entitled to the benefit of the doubt on that issue, and he is presumed to have been exposed to herbicide agents during his active service. Analysis: Whether the Veteran Was "In or Near" the Korean DMZ A veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit, that as determined by the Department of Defense, operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable. The Department of Defense has confirmed that the herbicide Agent Orange was used from April 1968 through July 1969 along the Korean DMZ to defoliate the fields of fire between the frontline defensive positions and the south barrier fence. The treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. Under the development instructions, if it is determined that a Veteran who served in Korea during the time period belonged to one of the units identified by Department of Defense, then it was presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) would apply. Id. If the Veteran served in a different unit located in Korea during this time period, the unit's location must be verified. The Veteran served during a period when the presumption of exposure to herbicide agents (e.g., Agent Orange) is applicable, but the Veteran did not serve in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ. See Vet. Benefits Adjudication P. Manual (M21-1) Part VIII, Section i.1.A.3.c (listing units the DoD has determined operate in or near the DMZ); Herbicide Exposure and Veterans with Covered Service in Korea, 74 Fed.Reg. 36640, 36642 (July 24, 2009). Therefore, he does not meet the criteria for presumptive exposure under 38 C.F.R. § 3.307(a)(6)(iv). However, this does not end the matter. Congress enacted a statute which became effective January 1, 2020, and which provides that a veteran who suffers from one of the diseases specified in 38 C.F.R. § 3.309(e) is entitled to presumptive service connection if the veteran "served in or near the Korean Demilitarized Zone (DMZ), during the period beginning on September 1, 1967, and ending on August 31, 1971." 38 U.S.C. § 1116B(a)(2). The above-referenced regulations provide criteria which, if met, will result in the presumption that a veteran was "in or near" the DMZ for purposes of the statute, but do not preclude finding that a veteran who did not serve in one of the units also had service "in or near" the DMZ such that exposure to herbicide agents would be presumed. Therefore, the Board must still determine whether there is an approximate balance of evidence on the issue of whether this Veteran served "in or near" the Korean DMZ. (The Board notes that there are numerous unpublished opinions by the United States Court of Appeals for Veterans Claims that adopt this interpretation.) The evidence establishes that the Veteran was part of Company C of the 702nd Maintenance Battalion, 2nd Infantry Division, which was stationed at Camp Edwards, South Korea during 1970. See February 2018 Defense Personnel Records Information Retrieval System (DPRIS) Response (indicating the unit history and other records relating to the relevant units "do not mention or document any specific duties performed by the 702nd Maint. Bn unit members along the Demilitarized Zone (DMZ))." The DPRIS Response does not provide affirmative evidence that the Veteran's duties did not take him "in or near" the DMZ, only that there is not documentation that they did. Importantly, the DPRIS Response does not indicate that ordinarily the searched records would "mention or document" specific duties of unit members that might take them in or near the DMZ and the record otherwise contains no indication that the records would ordinarily document individual duty assignments. Therefore, the DPRIS Response establishes that VA fulfilled its duty to assist in attempting to corroborate the Veteran's claimed service in or near the DMZ, but the finding of no evidence has no probative value with respect to the substantive issue because there is no basis to conclude that the Veteran's individual duties would have been recorded in the documents searched. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible). The Veteran testified that Camp Edwards was roughly three (3) miles from the DMZ and that his duties driving trucks and delivering supplies brought him to within "about a mile or so" from the DMZ. See November 2021 Board Hearing Tr. at 12. The Board takes judicial notice that Camp Edwards was less than seven (7) miles from the DMZ. The Board notes that the Veteran's credibility with respect to his testimony that he came within about a mile of the DMZ is enhanced by the fact that he was candid and definite in testifying that his duties did not take him within the boundaries of the DMZ. He knew that testimony that he did enter the DMZ, if believed, could have enhanced his claim. Moreover, given the proximity of Camp Edwards to the DMZ and the Veteran's duties driving a truck and delivering supplies, his testimony that he came within one mile of the DMZ is consistent with the known facts. His demeanor and general presentation provide an additional basis for finding that the Veteran was a credible witness. Therefore, the Board finds that the Veteran's duties took him to within a mile from the Korean DMZ. The question then becomes whether being within a mile of the DMZ qualifies as "near" the DMZ. The use in the statute and regulations of the term "near" without further clarification creates significant ambiguity and virtually ensures that veterans in similar situations will have different adjudicatory outcomes based on a given adjudicator's interpretation of the term "near." In interpreting the term, the Board notes that VA explained its promulgation of 38 C.F.R. § 3.307(a)(6)(iv) as "propos[ing] to presume herbicide exposure for any veteran who served between April 1968 and July 1969 in a unit determined by VA and DoD to have operated in an area in or near the Korean DMZ in which herbicides were applied." See Herbicide Exposure and Veterans with Covered Service in Korea, 74 Fed.Reg. 36640, 36641 (July 24, 2009). The emphasized language goes beyond the statutory language which does not limit finding a veteran is entitled to presumptive service connection only if the veteran served in an area "in or near" the DMZ "in which herbicides were applied." Rather, the statute only states that the veteran must have been "in or near the Korean" DMZ. 38 U.S.C. § 1116B. Furthermore, the new statute does not contain the language "as part of a unit that, as determined by the Department of Defense" in regard to determining whether the Veteran served near the Korean DMZ. Compare 38 C.F.R. § 3.307(a)(6)(iv) with 38 U.S.C. § 1116B. In resolving whether the Veteran's service within "about a mile or so" of the DMZ constitutes service in or near the DMZ, the Board will look to other facts previously recognized by VA and other statutory provisions relating to presumed exposure. VA has noted in its proposed regulations that the Korean DMZ is two and one half (2.5) miles wide and that the areas sprayed were "up to 350 yards wide along the southern edge of the DMZ north of the civilian control line." 74 Fed.Reg. at 36641. One possible interpretation is that the areas of presumed exposure include the areas actually sprayed and (on the DMZ side of that zone, at least), up to 2.5 miles away from the edge of the area sprayed with herbicide agents. An interpretation that a veteran need not be directly in an area sprayed with herbicide agents is consistent with the statutes and regulations setting forth presumptions relating to veterans who served in the Republic of Vietnam who could be as far as 12 nautical miles from shore and, hence, 12 nautical miles from any area to which herbicides were actually applied. See Procopio v. Wilkie, 913 F.3d 1371, 1379 (Fed. Cir. 2019); 38 U.S.C. § 1116A(d) ("the Secretary shall treat a location as being offshore of Vietnam if the location is not more than 12 nautical miles" from specified locations along the Vietnam coast). On the other hand, VA adjudication procedures with respect to alleged exposure to herbicides in Thailand during the Vietnam Era provide that veterans must have had duties that brought them much closer to (or possibly into) the areas where herbicide agents were sprayed. See, e.g., Vet. Benefits Adjudication P. Manual (M21-1) Part VIII, Section i.1.A.4.a and b. Specifically, the VA manual directs that, if a Veteran served as an Air Force security policeman, security patrol dog handler, or member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure should be acknowledged. Other service members who were on the designated bases would not be entitled to "special consideration" of herbicide exposure. This would suggest a much narrower interpretation of "in or near" the DMZ. However, VA's procedures for adjudicating claims based on alleged exposure in Thailand are not an interpretation of explicit statutory language applicable to Thailand, whereas, here, there is explicit statutory language (as with veterans who served in the Republic of Vietnam) which permits the presumption to apply to veterans who were not in areas where herbicide agents were applied, but were merely "near" such areas. Congress's chosen language ("in or near") remains hopelessly ambiguous. No precise definition can be discerned from the statute nor has VA promulgated a regulation which provides a precise definition of the term "in or near". The Board finds that coming within one mile of the DMZ is sufficient to trigger the presumptions of 38 U.S.C. § 1116B. As noted above, the language of the statute and VA regulations interpreting it already permit the presumption to apply to veterans who were near, but not directly in, areas where herbicide agents were sprayed. The Board need not determine in this matter how far away would still be "near" the DMZ, but only needs conclude that, under the facts of this case, the Veteran's credible testimony that he came within "a mile or so" of the DMZ is sufficient to establish that he comes within the group of veterans to which Congress intended to extend the presumption of exposure to herbicide agents. In addition to all the reasons set forth above, the Board relies on the uniquely pro-claimant principles underlying the veterans' benefits system. See Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013); Evans v. Shinseki, 25 Vet. App. 7, 14 (2011) (stating that the VA system is "veteran-friendly" and "non-adversarial"); Kouvaris v. Shinseki, 22 Vet. App. 377, 381 (2009) (noting that the veterans' benefits system is a "veteran-friendly" system); see also Shinseki v. Sanders, 556 U.S. 396, 412 (2009) ("Congress has expressed special solicitude for the veterans' cause.....the adjudicatory process is not truly adversarial"). The pro-claimant nature of the system is such that VA has an affirmative obligation to grant "every benefit that can be supported in law." 38 C.F.R. § 3.103(a) ("it is the obligation of VA...to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government."); 38 C.F.R. § 3.102 ("when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin...or any other point, such doubt will be resolved in favor of the claimant."). The Board cannot say that coming within "a mile or so" of the DMZ is not "near" the DMZ without further guidance by Congress and without a controlling interpretation of that term by the Secretary. The Board will resolve that interpretive doubt in favor of the Veteran. Consequently, the Veteran is within the category of veterans described in 38 U.S.C. § 1116B(a)(2) and, so, if he has "a disease specified in subsection (b)[, that disease] shall be considered to have been incurred or aggravated in the line of duty in the active military, naval, or air service, notwithstanding that there is no record of evidence of such disease during the period of service." 38 U.S.C. § 1116B(a)(1). Conclusion Because there is evidence that the Veteran has a current disability, the evidence is at least in approximate balance regarding whether he was exposed to herbicide agents during his active service, and the record establishes that, if he has diabetes, the current disability may be associated with the in-service event, he meets the criteria for remand for a VA examination. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities to include as secondary to diabetes mellitus is remanded. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities to include as secondary to diabetes mellitus is remanded. Finally, because a decision on the remanded issue of service connection for diabetes mellitus, type 2, could significantly impact a decision on these issues, they are inextricably intertwined. A remand of the claims of service connection for peripheral neuropathy of the upper and lower extremities is required. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from May 2018 to the Present. 2. Schedule the Veteran for a VA examination to determine whether he has a current diagnosis of diabetes mellitus, type 2, and, if so, whether he has peripheral neuropathy of the upper and lower extremities due to this condition. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.