Citation Nr: 1317063 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-16 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for residuals of lipomas affecting the arms, neck, and abdomen, claimed as secondary to service-connected diabetes mellitus and/or as a result of exposure to herbicides. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In addition to the claims listed on the title page of this decision, the April 2008 rating decision also denied entitlement to service connection for coronary artery disease. The Veteran perfected an appeal as to that issue by submitting a timely notice of disagreement and, after the issuance of a statement of the case, a substantive appeal. See 38 C.F.R. § 20.200 (2012). However, in November 2011, the RO granted service connection for coronary artery disease, effective October 2007, which is considered a full grant of the benefits sought with respect to that claim. See November 2011 rating decision. As such, the issue of service connection for coronary artery disease is no longer on appeal and will not be discussed herein. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. As discussed below, the claims on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action is required on his part. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Hypertension and Lipomas Review of the record reveals service connection for diabetes mellitus was established in April 2008. The Veteran has asserted that his current diagnosis of hypertension is secondary to his service-connected diabetes mellitus. He has also asserted that he has residuals of lipomas affecting his arms, neck, and abdomen that are secondary to his service-connected diabetes mellitus or, in the alternative, were incurred as a result of his exposure to herbicides while serving in Vietnam. With respect to his exposure to herbicides, the service department has verified that the Veteran served in the Republic of Vietnam from May 1969 to April 1970, which sufficiently establishes that he had in-country service in the Republic of Vietnam during the Vietnam era. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Thus, the Veteran's in-service exposure to herbicides is presumed. In this context, the law provides a presumption of service connection for certain diseases manifested within a specified time period, including chloracne and other acneform disease consistent with chloracne. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6); 3.309(e). Service connection for a disability claimed as due to herbicide exposure may also be established by showing that a disorder resulting in disability, such as residuals of lipomas, was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. The Veteran was afforded a VA examination in January 2008, where he was diagnosed with essential hypertension and residual scars of multiple lipomas affecting both arms, the neck area, and the abdomen. The January 2008 VA examiner opined that the Veteran's essential hypertension and residuals of lipomas are not related to his diabetes mellitus. The examiner did not, however, provide a rationale for his opinion, address whether the Veteran's hypertension and residuals of lipomas are aggravated by his diabetes mellitus, or address whether the residuals of lipomas are casually linked to his in-service exposure to herbicides. The evidentiary record also contains an October 2008 statement from L.M., CRNP, who noted, as relevant, the Veteran's diagnoses of diabetes mellitus and hypertension. L.M. opined it is as likely as not that the diagnosis of hypertension is secondary to service-connected diabetes mellitus. Like the January 2008 VA opinion, L.M. did not provide a rationale in support of her conclusion or address the aggravation element of this claim. As a result, the January 2008 VA opinion and October 2008 medical opinion are inadequate; thereby necessitating another remand to obtain a new opinion that adequately addresses whether the Veteran's hypertension and residuals of lipomas are secondary, to include aggravated by, his service-connected diabetes mellitus. The examiner will also be requested to address whether the Veteran's residuals of lipomas are casually linked to his in-service exposure to herbicides and provide a rationale for any opinions offered. Hearing Loss and Tinnitus The Veteran has asserted that his current hearing loss and tinnitus are related to his exposure to loud trucks, tanks, and guns while in Vietnam. See October 2007 statement. He has also asserted that he started having trouble with hearing and ringing in ears within a few months before service ended in 1971 and that he never worked in a high level of noise except for on active duty. See November 2008 statement. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was 63B20 "Mech Ord" and 620 281 "Auto Mechanic." Mechanic specialties are shown to involve a "Highly Probable" exposure to hazardous noise; thus, the Veteran's in-service noise exposure is conceded. See Fast Letter 10-35 (Sept. 2, 2010). In addition, the Veteran is competent to describe his in-service noise exposure. See Layno v. Brown, 24 Vet. App. 465, 469 (1994). Therefore, the Veteran's in-service noise exposure is acknowledged. Additionally, a September 2008 VA treatment record reflects the Veteran's complaints of tinnitus and decreased hearing. However, there is no opinion that addresses the etiology of such claimed disorders, to include whether such are related to the Veteran's in-service noise exposure. Therefore, in order to render a fully informed decision in this case, the Board finds a remand is needed in order to afford the Veteran a VA examination to determine if he currently has hearing loss and tinnitus disabilities that are related to his in-service noise exposure. See Duenas v. Principi, 18 Vet. App. 512 (2004) (holding that a medical examination should be afforded unless there is "no reasonable possibility" that an examination would aid in substantiating the Veteran's claim). All Claims The Board also notes that the Veteran receives treatment for claimed disorders through the Erie, Pennsylvania, VA Medical Center. The most recent treatment records contained in the claims file are dated in February 2009. Therefore, while on remand, any treatment records from such VA facility dated from February 2009 to the present should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the Erie, Pennsylvania, VA Medical Center dated from February 2009 to the present pertaining to his claimed disorders on appeal. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's January 2008 examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the January 2008 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. a. Is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's current hypertension is caused by his service-connected diabetes mellitus? b. Is it at least as likely as not that the Veteran's current hypertension is aggravated by his service-connected diabetes mellitus? c. Is it at least as likely as not that the Veteran's current residuals of lipomas affecting both arms, the neck, and abdomen are caused by his service-connected diabetes mellitus? d. Is it at least as likely as not that the Veteran's current residuals of lipomas affecting both arms, the neck, and abdomen are aggravated by his service-connected diabetes mellitus? e. Is it at least as likely as not that the Veteran's current residuals of lipomas affecting both arms, the neck, and abdomen related to his in-service herbicide exposure? In answering the foregoing, the examiner should state whether the Veteran's current residuals of lipomas are an acneform disease consistent with chloracne. A rationale must be provided for each opinion provided. 3. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of his bilateral hearing loss and tinnitus. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz . A Maryland CNC Test should also be administered to determine speech recognition scores. If the Veteran has a current diagnosis of bilateral hearing loss, the examiner should offer an opinion as to whether it is at least as likely as not related to his in-service noise exposure. The examiner should document the Veteran's reported history of tinnitus, including the nature, onset, and progression of tinnitus. Thereafter, the examiner should offer an opinion as to whether tinnitus is at least as likely as not related to his in-service noise exposure. The VA examiner should be informed of the Veteran's military occupational specialty (MOS) was 63B20 "Mech Ord" and 620 281 "Auto Mechanic," which are shown to involve a "Highly Probable" exposure to hazardous noise. The examiner should also consider the Veteran's post-service noise exposure, if any. The examiner should also note that, even if disabling hearing loss is not demonstrated at separation from service, service connection may be established for a current hearing disability if the evidence shows that the current disability is causally related to service. A rationale must be provided for each opinion provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims 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. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).