Citation Nr: 1115222	
Decision Date: 04/19/11    Archive Date: 05/04/11

DOCKET NO.  09-11 050A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for diabetes mellitus.

4.  Entitlement to service connection for a liver disorder.

5.  Entitlement to service connection for hemorrhoids.

6.  Entitlement to service connection for a left shoulder disorder.

7.  Entitlement to service connection for residuals of removal of a pilonidal cyst.

8.  Entitlement to service connection for hypertension.

9.  Entitlement to service connection for erectile dysfunction.


10.  Entitlement to service connection for peripheral neuropathy of the lower extremities.

11.  Entitlement to service connection for peripheral neuropathy of the upper extremities.

12.  Entitlement to service connection for chloracne.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARINGS ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

R. Kessel, Counsel


INTRODUCTION

The Veteran had active military service from November 1965 to January 1975 and from September 1976 to August 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2007, August 2009, and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.

A hearing was held on January 13, 2001, in Wichita, Kansas, before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case.  A transcript of the hearing testimony is in the claims file.

During the January 2011 hearing, the Veteran submitted additional evidence to the Board.  He also submitted a waiver of the RO's initial consideration of that evidence.  See 38 C.F.R. § 20.1304(c) (2010).  Therefore, the Board will consider such evidence in the adjudication of this appeal.

(The decision below addresses the Veteran's claims for service connection for hearing loss, tinnitus, and diabetes mellitus.  The remaining claims for service connection will be addressed in the remand that follows the Board's decision.)


FINDINGS OF FACT

1.  The Veteran has not been shown to have current hearing loss as defined by VA standards.   

2.  The Veteran has been shown to have tinnitus that is related to his military service

3.  The Veteran was exposed to herbicide agents while he was served in Thailand during the Vietnam era, and he has type II diabetes mellitus that is attributable to such exposure.


CONCLUSIONS OF LAW

1.  Hearing loss was not incurred in active service, nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2010).

2.  Resolving reasonable doubt in favor of the Veteran, tinnitus was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).

3.  Resolving all reasonable doubt in favor of the Veteran, type II diabetes mellitus is due to herbicide exposure in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2010).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

(The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.  See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).  The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.  The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim.  See 38 C.F.R. § 3.159(b)(1).)

The Board finds that all notification action needed to make a decision has been accomplished for claims of service connection for hearing loss, tinnitus, and diabetes mellitus.  In August 2007and February 2009 notice letters, the RO informed the Veteran and his representative of the information and evidence needed to substantiate the Veteran's claims for service connection.  The notice letters also provided the Veteran with the general criteria for assigning disability ratings and effective dates.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

The Board also finds that the August 2007and February 2009 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)).  In those letters, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer.  Additionally, the notice letters asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his claimed disorders.  Consequently, a remand of the service connection issues for further notification of how to substantiate the claims is not necessary.

There is also no indication that any additional action is needed to comply with the duty to assist in connection with the three issues being decided herein.  The Veteran's service treatment records have been obtained and associated with the claims file, as have treatment records from the VA Medical Center (VAMC) in Topeka, Kansas.  Records from multiple private treatment providers identified by the Veteran have also been obtained, including from records Dr. R.E.L. (initials used to protect the Veteran's privacy) and the Cotton-O'Neill Clinic.  Moreover, the Veteran was afforded a hearing before the RO in February 2010 and a hearing before Board in January 2011, and transcripts of those proceedings have been associated with the record.  

Additionally, the Veteran was provided VA audiological examinations in February 2009 and March 2010 in connection with his claims for service connection for hearing loss and tinnitus.  The examination reports contain sufficient evidence by which to decide those claims, including as to whether the Veteran has hearing impairment for VA purposes under 38 C.F.R. § 3.385 (2010).  

Moreover, as will be explained in further detail in the following decision, the Board is granting the Veteran's claims for service connection for tinnitus and diabetes mellitus.  Thus, those benefits sought on appeal are being granted in full.  Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the Veteran has resulted with regard to those two issues. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.


II. Analysis


Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  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 addition to the requirements for establishing service connection on a direct basis, service connection for certain diseases, such as sensorineural hearing loss and diabetes mellitus, may also be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e).  Section 3.307(d)(6) provides that 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. 38 C.F.R. § 3.307(d)(6)(i).  Section 3.307(d)(6) also provides that 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 C.F.R. § 3.307(d)(6)(iii).  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. Id.

The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).  For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2.  For the purposes of § 3.307, 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 Vietnam era. 38 C.F.R. § 3.307(a)(6)(i).  Agent Orange is generally considered an herbicide agent and will be so considered in this decision.

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii).

The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002).  Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that VA regulations require that a veteran have set foot within the land borders of Vietnam for presumptive service connection and that a veteran who never went ashore from the ship on which he served in the Vietnam coastal waters was not entitled to presumptive service connection.  The Federal Circuit has further held that VA's amendment to its Adjudication Procedure Manual excluding veterans who had not set foot in Vietnam was not invalid nor impermissibly retroactively applied. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).


A.  Hearing Loss

The Veteran asserts that he has hearing loss as a result of his active military service.  Through submitted statements and hearing testimony, he contends that he was exposed to loud noise in various circumstances during service.  These include:  (1) working on the flight line as an aircraft systems mechanic and routinely being within ten feet of jet engines; (2) working in a maintenance shop with a constant hum of machinery; (3) working in a printing press plant; and (4) weapons training in conjunction with his duties as a security guard, including the firing of .38 caliber guns, M-16s, and grenade launchers.  The Veteran maintains that any current hearing loss is related to the in-service noise exposure.  Additionally, he reports that hearing loss was noted after hearing testing during service.  

The Veteran's DD-214s list several military occupational specialties (MOS).  They include avionic inertial navigation and radar systems technician, photolighography specialist, and security supervisor.  Although in-service noise exposure is not expressly documented, exposure to loud noise is consistent with the Veteran's circumstances of military service.

For 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.  38 C.F.R. § 3.385 (2010).

The Veteran's service treatment records document instances of hearing loss.  Both a May 1980 examination report and his May 1987 separation examination report note bilateral high frequency hearing loss.  Significantly though, the audiometric results did not show hearing impairment for VA purposes during either instance or at any other time during the Veteran's military service.

Even though § 3.385 hearing impairment was not shown during service, evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Nevertheless, in February 2009 and March 2010, the Veteran underwent VA audiological examinations in connection with his claim for service connection.  The examiners reviewed the claims file, noted an accurate medical history, and conducted audiometric testing.  In both instances, the criteria set forth in § 3.385 were not met with respect to hearing impairment for VA purposes.  The Veteran did not have an auditory threshold of 40 decibels or greater for any of the designated frequencies of 500, 1000, 2000, 3000, and 4000 Hertz.  He did not have at least three auditory thresholds of 26 decibels or greater for the designated frequencies.  He also did not have a speech recognition score using the Maryland CNC Test of less than 94 percent.  This was so for both ears.

The Board notes that Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability.  See 38 U.S.C.A. §§ 1110, 1131.  The evidence reflects that the Veteran does not have hearing loss as defined by VA standards.  For hearing loss to exist as a current disability, the provisions of 38 C.F.R. § 3.385 must be met.  See Meedel v. Shinseki, 23 Vet. App. 277, 283 (2009); Hensley, 5 Vet. App. at 158.  In the absence of proof of current disability, the claim of service connection may not be granted.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992);see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  

Because there is no evidence showing that the Veteran's meets the criteria under 38 C.F.R. § 3.385, service connection for hearing loss is not warranted on either a direct or presumptive basis.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).


B.  Tinnitus 

The Veteran also asserts that he has tinnitus as a result of in-service noise exposure.  At his hearing, he testified that he initially experienced buzzing in his ears during service in 1985 or 1986.  At the time, the Veteran did not think much of the buzzing, but he states that he has continued to experience the buzzing since that time.  He maintains that any current tinnitus had its onset during military service.  

The Veteran's service treatment records are negative for references to tinnitus.  Nevertheless, the Veteran is competent to testify to experiencing symptoms that are observable by a lay person, which would include "ringing in the ears" or tinnitus.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  

Post-service medical records also document that the Veteran has tinnitus.  In a December 2007 letter, the Veteran's treating physician Dr. R.E.L. stated that the Veteran suffers from tinnitus as a result of long-term exposure to jet engines.  An October 2008 report from the Cotton-O'Neill Clinic also noted that the Veteran had a history of chronic bilateral tinnitus.  Additionally, both the February 2009 VA examiner and the March 2010 VA examiner diagnosed the Veteran with tinnitus.  Although the February 2009 VA examiner did not set forth an explicit etiological opinion, it was noted that tinnitus had been present since 1970-71.  The March 2010 VA examiner noted that the Veteran's tinnitus began while in service.  However, the examiner also opined that the Veteran's current tinnitus is less likely as not due to military acoustic trauma because the Veteran had normal hearing at the time of his retirement in May 1987.

In this case, the March 2010 VA examination report contains some medical opinion evidence against the claim.  However, Dr. R.E.L. linked the Veteran's current tinnitus to exposure to long-term exposure jet engines.  Given the Veteran's seemingly credible testimony as to the onset of his tinnitus during service and the continuity of experiencing tinnitus since that time, the evidence is at least in equipoise.  When resolving reasonable doubt in the Veteran's favor, the Board finds that he has tinnitus that is as likely as not related to his active military service.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In view of the finding, the Board concludes that service connection is warranted for tinnitus.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.


C.  Diabetes Mellitus

The Veteran asserts that he has diabetes mellitus as the result of his active military service.  He concedes that diabetes mellitus manifested after his periods of service.  Specifically, the Veteran testified that he was initially diagnosed with diabetes mellitus in 2004.  Post-service medical records also document that he was first diagnosed with diabetes mellitus in 2004.  Nevertheless, the Veteran contends that service connection is warranted for diabetes mellitus due to in-service exposure to herbicide agents, such as Agent Orange.  Specifically, he states that he was exposed to such agents when he was stationed at Udorn Royal Thai Air Force Base (RTAFB) in Thailand during the Vietnam era.  The Veteran alleges that herbicides were used at the base, particularly on the perimeter to control jungle vegetation.  He states that the performance of his duties regularly placed him near the perimeter of the base.  The Veteran maintains that any current diabetes mellitus should be presumed to be related to the in-service exposure to herbicide agents in a similar manner as it is for service members who were stationed within the borders of the Republic of Vietnam.

As previously noted, the regulations pertaining to veterans exposed to herbicide agents generally require service within the land borders of Vietnam.  The United States Court of Appeals for the Federal Circuit has upheld VA's longstanding interpretation of the regulation requiring the presence of a service member at some point on the land mass or inland waters of Vietnam in order to benefit from the presumption.  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009).  In the Veteran's case, he has not indicated that he had service in Vietnam, and his service records do not show that he served within the land borders of Vietnam

Recently, VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War.  In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes.  A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand.  Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used.

Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases.  Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans.  Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure."  The May 2010 bulletin identifies several bases in Thailand, including Udorn RTAFB.  C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence.

The Veteran's service records expressly show that he was stationed at Udorn RTAFB during the Vietnam War.  Although he had an MOS of security supervisor during service, this was the case after his service at Udorn.  When he was stationed there, his MOS was an aircraft inertial and radar systems repairman.  A November 1970 performance report characterized the MOS as aircraft radar and inertial navigation systems equipment repairman.  Specifically, the Veteran performed postflight, periodic, scheduled modifications, and unscheduled maintenance on inertial navigation and radar systems installed on RF-4C and F-4D aircraft.  Thus, the evidence does not show that the Veteran was a security policeman, a security patrol dog handler, or a member of a security police squadron when he was stationed at Udorn.  Indeed, he does not claim that he walked the perimeter of the base as a guard.  Instead, the Veteran testified that he was regularly in close proximity of the perimeter in the performance of his duties.

The Veteran has submitted substantial research material in support of his contention that he was exposed to herbicides at Udorn RTAFB.  This evidence includes annotated maps and photographs showing the areas of the base in which he performed his aircraft maintenance duties, including areas near the perimeter.

In addition, the Veteran submitted statements from fellow service members.  S.D.P. described Udorn from the time period from1968 to 1969 and noted that the vegetation died off after heavy spraying from barrels.  J.C.K. indicated that he worked in a shop within a hundred feet of the Veteran's shop at Udorn and recalled witnessing spraying around the shops and flight line to control vegetation.  He stated that some of the base in the jungle looked like the desert.  D.E.D. also recalled being stationed at Udorn at the same time as the Veteran and indicated that there was no foliage along the perimeter even though they were located in a jungle.  D.E.D. further noted that aircraft technicians such as the Veteran and himself worked within a few feet of the base perimeter.  In addition, L.M.T. stated that he was stationed at Udorn in 1970 and 1971 and worked with the Veteran on aircraft maintenance.  L.M.T. recalled that much of the maintenance was not conducted in hangars.  Instead, the aircraft were located on the flight line and were regularly parked near the base perimeter.

Moreover, E.J.G. stated that the Veteran worked under his supervision at Udorn and noted that the Veteran spent long hours on the flight line maintaining aircraft.  He indicated that the Veteran spent very little time in the shop areas.  T.L.E., who was also stationed at Udorn with the Veteran, similarly recalled that much of the aircraft maintenance took place on the flight line and rarely in a hangar.  L.M.P. stated that he was stationed at Udorn from 1965 to 1969.  L.M.P., D.L.E., and A.B.C. each recalled witnessing defoliant spraying around the perimeter of the base at Udorn.

Given the research evidence submitted by the Veteran, the numerous statements from fellow service members, and the Veteran's seemingly credible testimony, it appears that the Veteran likely performed his duties or otherwise served near the air base perimeter at Udorn RTAFB.  There is no explicit evidence that he was exposed to herbicide agents.  However, in view of the information set forth by C&P in the May 2010 bulletin and resolving all reasonable doubt in the Veteran's favor, the Board finds that he was exposed to herbicide agents while he was stationed in Thailand during the Vietnam era.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

As previously noted, the post-service medical evidence shows that the Veteran has type II diabetes mellitus.  That disorder is listed as a disease associated with exposure to herbicide agents.  See 38 C.F.R. § 3.309(e).  There is no affirmative evidence showing that the Veteran's diabetes mellitus was not caused by his exposure to herbicide agents.  In fact, in February 2010, Dr. R.E.L. opined that it is more likely than not that the Veteran's contraction of diabetes was secondary to his exposure to herbicides during active military service.  In view of this evidence, the Board finds that the Veteran has diabetes mellitus that is attributable to his active military service.  Therefore, the Board concludes that service connection is warranted for diabetes mellitus.  See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.



ORDER

Service connection for hearing loss is denied.

Subject to the provision governing the award of monetary benefits, service connection for tinnitus is granted.

Subject to the provision governing the award of monetary benefits, service connection for diabetes mellitus is granted.



REMAND

The Board finds that further development is necessary in regards to the claims of service connection for a liver disorder; hemorrhoids; a left shoulder disorder; residuals of removal of a pilonidal cyst; hypertension; erectile dysfunction; peripheral neuropathy of the lower extremities; peripheral neuropathy of the upper extremities; and, chloracne.

VA will provide a medical examination when there is insufficient competent medical evidence on file for VA to make a decision on the claim and:  (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  The Veteran has not yet been provided a VA medical examination in connection with any of the claims remaining on appeal.

With respect to the liver disorder claim, the Veteran testified that he was initially seen during military service for liver problems in 1973 and 1974 at Keesler AFB in Biloxi, Mississippi.  The Veteran recalled that a doctor had stated that he had a parasite infection from Thailand and that he had a "fatty liver."  He stated that the doctor thought the problem might be hepatitis.  The Veteran also recalled being hospitalized for ten days in Germany in 1984 for an enlarged liver.  Although he did not indicate that he had been diagnosed with any liver disorder after service, the Veteran testified that he has experienced similar symptoms as those when he had liver problems during service.

The Veteran's service treatment records contain multiple entries that reference liver problems.  In April 1971, the Veteran was treated in Thailand for diarrhea, fatigue, and poor appetite.  The assessment was to rule out amoebiasis and hepatitis.  From December 1974 to January 1975, the Veteran was seen for flu-like symptoms, and the impression was hyperbilirubinemia with possible Gilbert's syndrome versus mild hepatitis. A Mach 1978 entry also indicates that early hepatitis and Gilbert's disease were to be ruled out.  In February 1984, the Veteran was seen for several days in Germany for suspicion of an amoebic abscess, and testing revealed hepatosplenomegaly.  Amoebiasis was ruled out, but the assessment did correspond with a past infection with amoebae.  Subsequently, the Veteran was again seen for hepatomegaly and also assessed with questionable Gilbert's syndrome.  

Post-service medical records do not reference a liver disorder.  Nevertheless, the Veteran has indicated that he recurrent symptoms that are similar to the in-service symptoms.  The Board notes that Veteran is competent to describe his current symptoms. See Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, this claim must be remanded for a VA medical examination and opinion in order to determine whether the Veteran has a liver disorder and whether it had its onset during, or is otherwise attributable to, his active military service.

In regards to the hemorrhoids claim, the Veteran testified that he was first treated for hemorrhoids in 1972 at Keesler AFB.  The Veteran stated that he continues to have flare-ups and that he uses Preparation-H for treatment.

The Veteran's service treatment records do document treatment for hemorrhoids.  In particular, entries in April 1972, November 1971, September 1980, November 1981, and December 1981 reference hemorrhoids problems.  Post-service treatment records do not show treatment for hemorrhoids, but in October 2003, Dr. R.E.L. noted that there were no "significant" hemorrhoids.  It is unclear as to whether the physician meant that the Veteran had some degree of hemorrhoids.  In view of this evidence, this claim must be remanded for a VA medical examination and opinion in order to determine whether the Veteran has hemorrhoids and whether they had their onset during, or are otherwise attributable to, his active military service.

The Veteran testified that there was no specific injury that caused him to have left shoulder problems during military service.  Instead, he stated that repetitive activity in the performance of his duties resulted in left shoulder pain.  The activities included:  working with equipment and in the cockpit of F-4 aircraft; hauling 90 to 100 pound equipment bags; and, crawling, jumping, and performing other aspects of air base ground defense in Germany.  The Veteran stated that he initially noticed pain in his left shoulder when he returned from Thailand in 1972.  He testified that he has continued to experience left shoulder pain since military service and treats the pain with aspirin.

Service treatment records do contain one notation of a complaint of left shoulder pain.  The pain was noted in conjunction with a constant, nagging problem of neck pain, but no assessment was made concerning the left shoulder.  Post-service records also show treatment for bilateral shoulder pain at the Topeka VAMC since at least October 2005, although no specific diagnosis is of record.  In view of this evidence, this claim must be remanded for a VA medical examination and opinion in order to determine whether the Veteran has a left shoulder disability and whether it had its onset during, or is otherwise attributable to, his active military service.

With respect to the pilonidal cyst claim, the Veteran testified that he had a pilonidal cyst removed from his coccyx area during service.  He stated that the operation was performed in 1980 at the Grand Forks AFB in North Dakota.  The Veteran also indicated that he continues to experience discomfort in the area and that there is residual scarring.

The Veteran's service treatment records do document that the Veteran had a pilonidal cyst removed in February 1980 at the hospital at Grand Forks AFB.  He was placed on profile for three months following the operation.  At the May 1987 separation examination, it was also noted that the Veteran had a 6 centimeter scar from a pilonidal cystectomy.  No post-service treatment records reference the removal of the pilonidal cyst, but as previously discussed, the Veteran is competent to describe his current symptoms, such as discomfort and scarring.   In view of this evidence, this claim must be remanded for a VA medical examination and opinion in order to determine whether the Veteran has any residual disability from the in-service removal of the pilonidal cyst, including any disability related to scarring.

In regards to hypertension, the Veteran contends that service connection is warranted on both a direct basis and as secondary to his diabetes mellitus.  The Veteran testified that he does not recall a diagnosis of hypertension during his military service, but he did state that his blood pressure was monitored.  The Veteran testified that he had been treated for hypertension for approximately five years prior to the hearing.

The Veteran's service treatment records include a March 1977 blood pressure screening for "possible" cardiovascular hypertension after a blood pressure reading of 148/100.  The Veteran's blood pressure was monitored, but no assessment was made.  At a May 1980 periodic examination, it was noted that the Veteran had an elevated blood pressure reading of 132/98.   The provisional diagnosis was "rule out" hypertension.  His blood pressure was monitored, and he was not disqualified from service.  No assessment was made at that time.

The earliest documentation of post-service treatment for hypertension was in October 2005 at the Topeka VAMC.  Dr. R.E.L. has also treated the Veteran for hypertension since that time.  In view of this evidence, this claim must be remanded for a VA medical examination and opinion in order to determine whether the Veteran has hypertension and whether it had its onset during, or is otherwise attributable to, his active military service.  Given that the Board granted service connection for diabetes mellitus in the decision above, the medical opinion should also address whether the Veteran has hypertension that was caused or aggravated by his service-connected diabetes mellitus.  See 38 C.F.R. § 3.310.

In addition, the Veteran testified that his erectile dysfunction began in approximately 2004.  He maintains that it is the result of his diabetes mellitus, but that no doctor has commented on that possible relationship.  In view of this evidence, this claim must be remanded for a VA medical examination and opinion in order to determine whether the Veteran has erectile dysfunction that was caused or aggravated by his service-connected diabetes mellitus.  

With respect to the two claims concerning peripheral neuropathy of the extremities, the Veteran testified that he first noticed tingling in his extremities in approximately 2003.  He believes that the tingling is a symptom of peripheral neuropathy that is due to his diabetes mellitus.

An October 2008 record from the Cotton-O'Neill Clinic indicates that peripheral neuropathy with chronic numbness was suggestive.  In December 2008, peripheral neuropathy was added to the Veteran's past medical history list at the Topeka VAMC.  In view of this evidence, this claim must be remanded for a VA medical examination and opinion in order to determine whether the Veteran in fact has peripheral neuropathy of any extremity and, if so, whether it was caused aggravated by his service-connected diabetes mellitus.

In regards to the chloracne claim, the Veteran testified that he first noticed acne-related problems in 1972 after he returned from Thailand.  He did not report the problems at that time, but he claims that it became worse in the 1980s.  The Veteran stated that he has continued to experience the acne since his military service.  He contends that he has chloracne and that it is related to his exposure to herbicide agents.

Service treatment records do not reference acne-related problems.  Post-service treatment records include a July 2008 VA "Agent Orange Program" note that indicates that the Veteran has recurring cysts.  In view of this evidence, this claim must be remanded for a VA medical examination and opinion in order to determine whether the Veteran has chloracne, or any other acne-related disorder, and whether it had its onset during, or is otherwise attributable to, his active military service, including exposure to herbicide agents.

The Board notes that chloracne is listed among the diseases associated with exposure to herbicide agents.  See 38 C.F.R. § 3.309(e).  However, in order for service connection to be presumed, chloracne must have become manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military service.  See 38 C.F.R. § 3.307(a)(6)(ii).  Thus, if it is determined that the Veteran has chloracne, the medical opinion should address, to the extent possible, when it first became manifested to a degree of 10 percent or more.

It appears that the Veteran continues to receive regular treatment at the Topeka VAMC.  As this case is case is already being remanded, the RO should take this opportunity to obtain any recent treatment records.

The record also reveals that a VCAA notice letter was provided to the Veteran for each of the claims remaining on appeal.  However, the letters pertaining to the claims of service connection for hypertension and erectile dysfunction did not include notice of how to substantiate a service connection claim on a secondary basis.  Thus, on remand, an updated VCAA notice letter should be sent to the Veteran.

Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions:


1.  The RO should a VCAA notice letter to the Veteran.  The letter should specifically notify him of the information and evidence necessary to substantiate his claims of service connection for hypertension and erectile dysfunction on a secondary basis.  See 38 C.F.R. § 3.310.  The Veteran should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file.

2.  The RO should obtain the Veteran's recent treatment records (since December 2008) from the Topeka VAMC and associate them with the claims folder.

3.  The Veteran should be scheduled for appropriate VA examinations in connection with each of his remaining service connection claims on appeal.  He should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal.  See 38 C.F.R. § 3.655 (2010). 

The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, each designated examiner.  All appropriate tests and studies should be performed and all clinical findings should be reported in detail.  All opinions expressed by the examiners should be set forth in detail and explained in the context of the record.

Liver Disorder:  The designated examiner should determine whether the Veteran has a current liver disorder.  The examiner should provide an opinion as to the medical probabilities of whether the Veteran has a liver disorder that manifested in service or is otherwise causally or etiologically related to his military service.  Consideration should be given to the in-service treatment for liver problems detailed in the remand section above.

Hemorrhoids:  The designated examiner should determine whether the Veteran has hemorrhoids.  The examiner should provide an opinion as to the medical probabilities of whether the Veteran has hemorrhoids that manifested in service or are otherwise causally or etiologically related to his active military service.  Consideration should be given to the in-service treatment for hemorrhoids detailed in the remand section above.

Left Shoulder Disorder:  The designated examiner should determine whether the Veteran has a current left shoulder disorder.  The examiner should provide an opinion as to the medical probabilities of whether the Veteran has a left shoulder disorder that manifested in service or that is otherwise causally or etiologically related to his military service.  Consideration should be given to the in-service treatment for left shoulder pain detailed in the remand section above.

Residuals of Removal of a Pilonidal Cyst:  The designated examiner should determine whether the Veteran has any residual disability as a result of the in-service removal of a pilonidal cyst, including any disability related to scarring.

Hypertension:  The designated examiner should determine whether the Veteran has hypertension.  The examiner should provide an opinion as to the medical probabilities of whether the Veteran has hypertension that manifested in service or is otherwise causally or etiologically related to his active military service.  Consideration should be given to the in-service blood pressure monitoring detailed in the remand section above.  The examiner should also provide an opinion as to whether the Veteran has hypertension that was caused or aggravated by his service-connected diabetes mellitus.

Erectile Dysfunction:  The designated examiner should determine whether the Veteran has erectile dysfunction.  The examiner should provide an opinion as to whether the Veteran has erectile dysfunction that was caused or aggravated by his service-connected diabetes mellitus or service-connected degenerative disc disease of the thoracolumbar spine.

Peripheral Neuropathy of the Lower and Upper Extremities:  The designated examiner should determine whether the Veteran has peripheral neuropathy of any of the extremities.  The examiner should provide an opinion as to whether the Veteran has peripheral neuropathy that was caused aggravated by his service-connected diabetes mellitus.

Chloracne:  The designated examiner should determine whether the Veteran has chloracne or any other acne-related disorder.  The examiner should provide an opinion as to the medical probabilities of whether the Veteran has chloracne or other acne-related disorder that manifested in service or that is otherwise causally or etiologically related to his military service.  Consideration should be given to the Veteran's statements concerning in-service symptoms detailed in the remand section above.  If chloracne is identified, the examiner should address, to the extent possible, when it first became manifested to a degree of 10 percent or more.

4.  After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand.  If a report is deficient in any manner, it should be returned to that examiner for corrective action.

5.  After undertaking any other development deemed appropriate, the RO should readjudicate the remaining issues on appeal.  If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.


By this remand, the Board intimates no opinion as to any final outcome warranted.  No action is required of the Veteran until he is notified by VA.  The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



______________________________________________
JESSICA J. WILLS
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs