Citation Nr: 18124058
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-10 806
DATE:	August 3, 2018
ORDER
The appeal as to a claim for entitlement to service connection for right knee arthritis is dismissed.
Entitlement to service connection for diabetes mellitus, type II, as due to exposure to herbicides, is denied.
Entitlement to service connection for sleep apnea, including as secondary to diabetes mellitus, is denied. 
Entitlement to service connection for tinnitus is granted.
REMANDED
Entitlement to service connection for bilateral hearing loss is remanded.
Entitlement to a rating in excess of 20 percent for calcaneal spur, right ankle, residuals sprain (also claimed as arthritis, right ankle) is remanded.
FINDINGS OF FACTS
1. At his April 2018 Board hearing, the Veteran stated that he wished to withdraw his claim for entitlement to service connection for a right knee arthritis.
2. The Veteran’s diabetes did not have onset in service and is not otherwise related to service.    
3. The Veteran’s sleep apnea did not have onset in service and is not otherwise related to service.  
4. Resolving all doubt in the Veteran’s favor, tinnitus is etiologically related to his period of active service.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for right knee arthritis have been met.  38 U.S.C. § 7105(b)(2); 38 C.F.R. §§ 20.202, 20.204.
2. The criteria for service connection for diabetes mellitus, type II, to include as due to claimed exposure to herbicides, have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
3. The criteria for service connection sleep apnea, to include as secondary to diabetes mellitus, have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.
4. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1972 to September 1974 and had reserve ser.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2012 and August 2013 rating decisions.
In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A copy of the proceedings is associated with the electronic claims file.
Withdrawal
At his April 2018 Board hearing, the Veteran stated to the Board that he wanted to withdraw his appeal for entitlement service connection for right knee arthritis.  The Veteran testified multiple times that he wanted to withdraw his claim for service connection for his right knee arthritis. The Veteran’s wishes were reduced to writing in the April 2018 hearing transcript.  The Veteran’s withdrawal was explicit, unambiguous, and done with a full understanding of the consequence of his actions as evidenced by his multiple statements on the record indicating he wanted to withdraw his claim.  Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018).
A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  The withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists.  In such an instance, the Board does not have jurisdiction to review the appeals, and a dismissal is then appropriate. 
As a result of the Veteran’s withdrawal of the appeals for entitlement service connection for right knee arthritis, there remain no allegations of error of fact or law for appellate consideration with respect to this issue, and they must be dismissed.
Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  That determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d). 
VA has established a presumption of service connection for certain diseases found to be associated with herbicide exposure, including diabetes.  38 U.S.C. § 1116; 38 C.F.R. § 3.309(e).  Absent affirmative evidence to the contrary, diseases on the presumptive list such will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established.  Id.; 38 C.F.R. § 3.307(d). The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 (the Vietnam Era), specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). 
A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to an herbicide agent.  38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  
In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).
In this matter, the Veteran claims entitlement to service connection for diabetes as due to exposure to herbicides, for sleep apnea, including as secondary to diabetes, and for tinnitus.  
At the outset, the Board notes that diabetes is included in the list of presumptive diseases under 38 C.F.R. § 3.309(e) regarding exposure to herbicides.  The Veteran contends he was exposed to herbicides while aboard the U.S.S. Saratoga.  He testified in his April 2018 hearing that the wind carried herbicides to the ship and that the ship was 3-4 miles offshore of Vietnam.  He testified that he did not set foot in Vietnam.  As noted above, service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam, that is, within the land borders, including the inland waters, of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii); Haas v. Nicholson, 20 Vet. App. 257 (2006).  The Veteran has indicated that his service was in the coastal waters of Vietnam (which does not qualify as service in Vietnam).  Notably, VA has promulgated a listing of Navy ships service on which may be conceded to have involved exposure to agents.  See VBA Training Letter 10-06 (Sept. 2010); see also VA Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H, Part 2.h.  The U.S.S Saratoga is not included in that list. There is no indication in the Veteran’s claims file, including his hearing testimony, that he had any other means for exposure to herbicides.  Thus, as there is no evidence of record which would indicated that the Veteran was exposed to herbicides while aboard the U.S.S. Saratoga or by any other means, the Board finds that the Veteran is not presumed to have been exposed to herbicides and cannot prevail on his claim for service connection for diabetes based upon the presumptive service connection provisions of § 3.309(e).
Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure.  Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994).
In his September 1974 separation examination, there was no indication that the Veteran had any concerns, symptoms, or complaints regarding his tinnitus, diabetes, or sleep apnea.
In February 1982, 1984, and 1988 periodic examinations, the Veteran did not report any issues or concerns regarding diabetes, tinnitus, or sleep apnea.  
In November 2002, a VAMC consultation note indicated the Veteran was pre-diabetic and nutritional counseling was requested.  
In August 2005, a VAMC record indicated the Veteran denied a history of diabetes.
In October 2005, a VAMC record showed the Veteran indicated he was bothered by tinnitus.  
In November 2005, a VAMC record showed the Veteran presented with complaints of tinnitus.  
In March 2009, a VAMC records showed the Veteran denied tinnitus.
In October 2009, a VAMC record indicated the Veteran reported occasional tinnitus bilaterally.  
In March 2010, a private medical record indicated the Veteran had been referred to rule out sleep disorders.  The Veteran reported that he had sleep issues for the prior 1-2 years and had been snoring for the prior 3 years.  The Veteran denied a past medical history positive for diabetes.  The Veteran was diagnosed with mild obstructive sleep apnea.  
In June 2011, a VAMC record showed the Veteran to have presented for follow-up of his sleep apnea.  He was noted to be using his CPAP machine.
In December 2011, a VAMC record noted the Veteran was not diabetic.  
In June 2012, a VAMC record noted the Veteran was not diabetic.  
In October 2012, a VA examination regarding herbicide exposure indicated the Veteran had been aboard an aircraft carrier.  He stated he did not go ashore in Vietnam.  He reported his past medical history positive for sleep apnea and using a CPAP machine for the past 2 years.  Upon examination, he was noted to have diabetes which was being treated with diet only.  
In December 2012, a VAMC record showed the Veteran reported he had been diagnosed with diabetes within the last year, but was not on medication.  
In February 2013, a VAMC record indicated that the Veteran reported his sugar was high.  He was noted to have pre-diabetes and was recommended on a low-carbohydrate diet.  He indicated he was a diabetic.  
In February 2013, a private medical record indicated the Veteran had been referred for possible diabetes and diabetic neuropathy.  The Veteran reported that he had been in Vietnam aboard a ship and was exposed to agent orange.  He reported he had sleep apnea for the past 2 years and used a CPAP machine.  He reported pain in his legs which he related to diabetic neuropathy.  It was noted that the physician first had to establish the Veteran had diabetes.  Upon examination, the impression was possible diabetes, as his A1c was approaching the diabetic range.  Further testing was ordered.  
A May 2013, VAMC record indicated the Veteran had chronic bilateral tinnitus for the past 27 years which had gotten worse over the past 3 to 4 years.  
An August 2013, VA audiological examination diagnosed the Veteran with tinnitus.  The Veteran reported constant bilateral tinnitus which started in the 1970’s.  
In September 2013, a private medical record indicated that the Veteran had returned for follow-up care regarding his diabetes.  The physician indicated that the Veteran’s tests indicated that he had diabetes and he was started on prescription medication.
In April 2018, the Veteran testified before the undersigned Veterans Law Judge.  He testified that he did not notice diabetes until he got out of service.  He reported that his ship was off the coast of Vietnam and that the planes aboard the ship did runs with Agent Orange and the spray from those runs blew back out into the sea.  He reported that he had not been ashore in Vietnam, but that the ship was 3-4 miles offshore and the herbicide spray blew back out at sea.  He stated he was told that his sleep apnea was secondary to his diabetes medication.  He stated that he was exposed to noise while aboard the U.S.S. Saratoga and was not provided hearing protection.  He stated that ringing in his ears began in the late 1970’s.  He also testified that he noticed ringing in his ears while he was in-service.
Direct service connection necessitates that the Veteran’s diabetes and sleep apnea were related to an injury or disease incurred in service.  The evidence of record, however, does not support such a finding.  The evidence of the file established that the Veteran’s diabetes and sleep apnea did not have onset until well after his active service, with his diabetes not diagnosed until October 2012 and his sleep apnea diagnosed in March 2010, each over 30 years after active service.  The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000); Shaw v. Principe, 3 Vet. App. 365 (1992).  
Though the medical evidence indicated that the Veteran did state that he was exposed to herbicides while in-service, there is no indication that any medical provider related his diabetes to his service or any such exposure. Additionally, as the above analysis indicated, there is also no evidence which would support the Veteran’s contention that he was actually exposed to herbicides.  Furthermore, the Board also notes that at no time during the course of his treatment for his sleep apnea did the Veteran relate his symptomology to his active duty service or any injury or occurrence in service. Indeed, in his sleep study forms, the Veteran indicated that his sleep apnea had begun a few years prior without mention of his service; he also denied that he had diabetes in that sleep study.  Additionally, none of the Veteran’s medical providers treating diabetes or sleep apnea made an assessment or indicated that a link to active service could be possible.  The evidence of record, then, did not link the Veteran’s diabetes or sleep apnea to his active service.  As such, direct service-connection for a diabetes or sleep apnea is not warranted or supported by the record.
As service connection for diabetes is denied, there cannot be a claim for secondary service connection for sleep apnea as due to diabetes.
Significantly, the Veteran has not presented or identified any medical opinion that either provides a link between his active service and his diabetes or sleep apnea or supports the claims for service connection in any way.  Though the Veteran did have an VA Agent Orange examination, that examination was based on the Veteran’s statement that he was exposed to herbicides while in-service, which is not supported by the evidence of record.  The Board also notes that none of the Veteran’s direct service providers linked the Veteran’s diabetes or sleep apnea to his claimed exposure to herbicides.
The Board has considered the Veteran’s lay statements that his diabetes and sleep apnea were related to and caused by his active service.  Although the Veteran is competent to describe observable symptoms of his diabetes and sleep apnea, he is not competent to opine as to the etiology of those disorders, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  As such, the Veteran’s lay opinion that his disorders were caused by his active service or that his sleep apnea was caused by his diabetes medication do not constitute competent medical evidence and lack probative value. 
The Board concludes that the preponderance of the evidence is against the claims of entitlement to service connection for diabetes and/or sleep apnea.  As such, the benefit-of-the-doubt rule does not apply, and the claims must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
In regard to his claim for tinnitus, the Veteran testified that he has experienced tinnitus since service. He further testified that this prompted him to seek VA assistance. This testimony is consistent with his continual reports of tinnitus throughout his claim on appeal. 
The Veteran is competent to report both the onset and continuation of tinnitus symptoms. Based on the Veteran’s credible and competent testimony regarding onset, the Board finds that the evidence is at least in relative equipoise regarding whether the current tinnitus began during service.
Resolving any doubt in the Veteran’s favor, service connection for the Veteran’s tinnitus is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
The Veteran sought service connection for bilateral hearing loss.  An August 2013 VA examination was unable to provide an opinion regarding whether the Veteran’s hearing loss was related to his service.  The examiner stated that as the Veteran’s separation examination did not have audiological results, she was unable to offer an opinion on etiology.  However, the Board notes that it is not a sufficient rationale for a negative nexus opinion merely to state that the Veteran’s hearing was within normal limits on audiometric testing during service.  In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  Thus, the Board finds that the August 2013 VA examination regarding the Veteran’s bilateral hearing loss is inadequate.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  When an examination is inadequate, the Board must remand the case for further development.  Bowling v. Principi, 15 Vet. App. 1 (2001), 38 C.F.R. § 4.2.  
Additionally, the Veteran has sought an increased rating for his right ankle disability.  The Veteran last had a VA examination regarding his right ankle in November 2016.  In his April 2018 hearing, the Veteran testified that his right ankle symptomology had increased in severity.  Therefore, a more contemporaneous examination of the Veteran’s right ankle is warranted.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”).
The matters are REMANDED for the following action:
1. Schedule the Veteran for an appropriate audiological examination, by an examiner who has not previously examined him, to determine the nature and likely etiology of his claimed bilateral hearing loss. The claims file and all pertinent records must be made available to the examiner for review. 
The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hearing loss had onset during service or is otherwise related to his active military service.
A discussion of the facts and medical principles involved (to include acoustic trauma and military noise exposure) including the Veteran’s service treatment records and lay assertions, specifically the Veteran’s April 2018 hearing testimony, should be considered in giving this opinion.  
The examiner is reminded that it is not a sufficient rationale for a negative nexus opinion merely to state that the Veteran’s hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).
The examiner must explain the rationale for all opinions, citing to supporting clinical data and/or medical texts or treatises as deemed appropriate. If the examiner determines that a requested opinion cannot be given without resort to speculation, the examiner must explain the reason for that conclusion.
2. Thereafter, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected right ankle disability.  The claims file must be made available to the examiner for review in connection with the examination, and it should be confirmed that such records were available for review.  All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail.  The examination report must include a complete rationale for all opinions expressed. 
The examiner should conduct range of motion testing of the ankles (expressed in degrees), to include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  If pain on motion is observed, the examiner should indicate the point at which pain begins.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain the basis for this decision.
In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the right ankle due to pain or other symptoms during flare-ups or with repeated use.  To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion.  If the examiner concludes that an estimate of the range of motion during flare ups cannot be provided without resorting to mere speculation, the examiner must support that opinion with a full and complete explanation as to why the examiner cannot provide the requested opinion without resort to mere speculation.

 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Parrish, Associate Counsel 

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