Citation Nr: 20007428 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 18-37 824 DATE: January 29, 2020 REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for leukemia is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, for leukemia, and for hypertension are remanded. The Veteran contends that he is entitled to service connection for diabetes mellitus, type II, for leukemia, and for hypertension, as the conditions are due to his exposure to herbicide agents. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A veteran who, during active 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(a). The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Additionally, on June 19, 2015, a regulation became effective allowing members of the Air Force and Air Force Reserve to be granted presumptive service connection based on exposure to herbicides for individuals who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam Era. When C-123 related exposure occurs during reserve or guard service during a period of non-active duty, the effective date is June 19, 2015, the date 38 C.F.R. § 3.307(a)(6)(v) became effective, which is what allows VA to consider C-123 related herbicide exposure as an “injury” thereby allowing service connection. The law under 38 C.F.R. § 3.307 states an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 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 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma); and 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), shall be service-connected if the requirements of 38 C.F.R. § 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 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset 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 Board notes that the presumption relating to herbicide agent exposure associated with C-123 aircraft is only available for Air Force or Air Force Reserve veterans. As the Veteran’s personnel records indicate that he served in the Army, he is not entitled to presumed exposure to herbicide agents on that basis. Additionally, there is no indication from the record that the Veteran served in the Republic of Vietnam. Accordingly, he is not presumed to have been exposed to herbicide agents during his active duty service. Although the Veteran has not established herbicide agent exposure on a presumptive basis, he can still otherwise show exposure based on independent evidence of such exposure. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In a November 2013 statement, the Veteran indicated that as a paratrooper stationed in Okinawa, Japan, he jumped from planes that were used to shuttle troops to and from Vietnam, and was exposed to “toxic chemicals.” In a January 2014 statement, the Veteran stated that he traveled on airplanes and ships that may have moved herbicide agents, and noted that he had four disease which are presumed to be related to Agent Orange exposure. In an April 2014 statement, the Veteran claimed that, as a paratrooper, he jumped from airplanes that transported soldiers and equipment to and from Vietnam. At his December 2019 Board hearing, the Veteran testified that he was a paratrooper and flew on numerous planes that carried soldiers back and forth from Vietnam and Taiwan. He indicated that he flew in C-130s and C-124s and that the aircraft also carried chemicals. He stated that he knew the aircraft also traveled to Vietnam because he was nearly deployed to Vietnam, but was “pulled off the line” the day before he was supposed to leave. A July 2014 VA formal finding noted that the information required to corroborate exposure to herbicide agents was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or was insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. The AOJ indicated that all procedures to obtain information from the Veteran were properly followed and that further attempts were futile. The AOJ noted the Veteran’s January 2014 and April 2014 statements; however, the AOJ stated that the information submitted by the Veteran was insufficient to concede exposure or to submit a JSRRC request. Despite the evidence of record indicating that the Veteran was not exposed to herbicide agents during his active duty military service described above, in a February 2014 VA examination concerning his leukemia, the examiner noted that his treatment for chronic lymphocytic lymphoma was to start immediately and that he had Agent Orange exposure. It is unclear from the record if the examiner was providing an opinion that it was at least as likely as not that the Veteran’s leukemia was related to Agent Orange exposure. Thus, an addendum opinion is necessary on remand to clarify the examiner’s opinion regarding the Veteran’s claimed herbicide agent exposure and the etiology of his leukemia, generally. As the Veteran has also claimed that his hypertension and diabetes mellitus, type II, are related to his claimed herbicide agent exposure, those issues are intertwined with the issue of entitlement to service connection for leukemia and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Additionally, the Board notes that at his December 2019 Board hearing, the Veteran claimed that he had diabetes when he separated from active duty military service. In a February 2014 VA examination, the examiner listed an approximate date of diagnosis of diabetes in 1980 and noted that the Veteran’s condition was “long standing.” As diabetes mellitus is a chronic condition listed under 38 C.F.R. § 3.309(a), an addendum opinion is also necessary on remand to clarify the etiology and onset of the Veteran’s diabetes mellitus, type II. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for hearing loss is remanded. The Veteran contends that he is entitled to service connection for hearing loss, as he was exposed to acoustic trauma during his active duty military service. The record reflects that the Veteran was afforded a VA examination concerning his claim in February 2014; however, the Board finds that the examination is insufficient on which to decide his claim. In the February 2014 examination, the examiner noted that the Veteran had bilateral progressive hearing loss, which he stated began over 15 years before the examination. The Veteran reported that he served in the Army as a paratrooper from May 1963 to April 1965 and claimed that he had noise exposure from 4.2 mortars. He stated that he did not recall using hearing protection and further noted a 16-year history of occupational noise exposure in an automobile plant, with the use of hearing protection. He indicated that he did not have a history of recreational noise exposure, head injury, or familial hearing loss. In an August 2014 supplement, the examiner stated that there was no evidence of hearing loss and/or tinnitus noted on the Veteran’s separation examination. The examiner claimed that remote noise exposure did not cause delayed-onset hearing loss and/or tinnitus. The examiner opined that it was less likely than not that his hearing loss and/or tinnitus was incurred in or caused by his military service. The Board notes that the examiner did not provide any support for the conclusion that remote noise exposure did not cause delayed-onset hearing loss, and that the opinion is in line with an Institute of Medicine (IOM) report, Noise and Military Service: Implications for Hearing Loss and Tinnitus, which stated that, “based on current knowledge [noise-induced hearing loss] NIHL occurs immediately, i.e. there is no scientific support for delayed onset NIHL weeks, months, or years after the exposure event.” The report also stated that, “[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure” and that “definitive studies to address this issue have not been performed.” The Court of Appeals for Veterans Claims (Court) recently decided in McCray v. Wilkie, 31 Vet. App. 243 (2019), that the oft-used IOM report contained qualifying or contradictory aspects concerning the relationship between noise exposure and the onset of hearing loss. The Court indicated that to be adequate, a negative opinion relying on the study must sufficiently address the existence of any factors that may impact the probative value of a medical text which addresses an unsettled medical question. The Board further notes that medical texts can provide “important support” for service connection, particularly when interpreted by a medical professional. See Sacks v. West, 11 Vet. App. 314, 317 (1998). Therefore, the Board finds that the February 2014 examination and August 2014 supplement are inadequate, and an addendum opinion is necessary on remand which addresses the nature and etiology of the Veteran’s hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The Board notes that noise exposure during the Veteran’s active duty service, both from his experiences involving heavy weapons and from frequently traveling in aircraft, at times without sufficient hearing protection, is conceded. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD, as the conditions are related to traumatic experiences during his active military service. The record reflects that the Veteran was afforded a VA examination concerning his claim in February 2014; however, the Board finds that the examination is insufficient on which to decide his claim. In the February 2014 examination, the examiner opined that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD, but did meet the criteria for depressive disorder. The examiner documented that he had a history of depression, tearfulness, sleep problems, and occasional dreams of “flying,” and indicated that he had received VA treatment for depression and anxiety. The examiner stated that the Veteran did not serve in Vietnam and was not in any combat situations or in any specific personal trauma. The examiner opined that his depressive disorder was not related to his military service, but was instead due to personal issues. The examiner noted that the Veteran was married for 50 years and that he worked steadily for an automobile manufacturer for over 17 years and also managed a hardware store until he retired. In a November 2013 statement, the Veteran claimed that he was “out in the field and a guy with us picked up a shell that we thought was a dud and it exploded and blew the soldier’s leg off.” He indicated that he only slept for two to three hours per night and experienced night sweats. He stated that he dreamt about flying and “coming down head first when [he] was hurt.” He noted that he tried to stay away from people and relatives. In a January 2014 statement, the Veteran again noted experiencing dreams of flying, and of “coming down head first in Taiwan.” He indicated that he sweated profusely when he had those dreams and that he could not “have an argument with people because [he could] not control [becoming mad].” In an April 2014 statement, the Veteran claimed that he still experienced intrusive thoughts about witnessing a fellow soldier’s leg being blow off in Okinawa, Japan. He again stated that he only slept two to three hours per night. In a letter dated May 2014, received by VA in August 2015, the Veteran’s counselor indicated that he experienced traumatic events during training exercises in Taiwan, where his unit was “dropped on the line between Red China and Nationalist China.” The counselor noted that, on one occasion, he jumped out of an aircraft when there was a 20-knot wind and reported being carried along very swiftly before hitting the ground. He claimed that after initially hitting the ground, he was immediately “yanked back up by the wind and slammed head first into a mountain on the other side of a ravine.” The Veteran reported that he injured his shoulder and was unable to raise his arm above his head “for years.” The counselor indicated that he endorsed typical symptoms of PTSD, including recurrent nightmares, night-terrors, avoidance, inability to attain or maintain sleep, low frustration tolerance, intrusive thoughts and recall, hypervigilance, hyperarousal, irritability, startle response, and isolation. The counselor further noted that his short-term memory was moderately impaired and that self-administered testing results were “highly suggestive of PTSD.” In a June 2018 statement, the Veteran again noted that he dreamt about the incident during service where he jumped from a plane in Taiwan into high winds and injured himself. He indicated that he broke his collar bone in the incident. Therefore, the Board finds that the February 2014 examination is inadequate, as it failed to address all relevant evidence of record concerning the Veteran’s claimed traumatic events during service. Accordingly, a new VA examination is necessary on remand to determine the nature and etiology of any current acquired psychiatric disorder. See Barr, supra. The AOJ should also obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. The matters are REMANDED for the following action: 1. The AOJ should obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. 2. After associating all newly obtained evidence with the claims file, provide a copy of the file, including a copy of this remand, to an appropriately qualified examiner for an opinion regarding the nature and etiology of the Veteran’s leukemia. The examiner should review the entire claims file and should indicate that such review was completed in the opinion report. If deemed appropriate, the examiner should contact the Veteran for additional information or examination. The examiner is asked to provide an addendum opinion to the February 2014 VA opinion and August 2014 addendum as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s leukemia is related to his active duty military service, including as due to herbicide agent exposure. In providing the requested opinion, the examiner should consider all relevant evidence of record, including both medical and lay evidence, citing to specific evidence where appropriate. The examiner should specifically discuss the Veteran’s claimed exposure to Agent Orange. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran’s statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After associating all newly obtained evidence with the claims file, provide a copy of the file, including a copy of this remand, to an appropriately qualified examiner for an opinion regarding the nature and etiology of the Veteran’s diabetes mellitus, type II. The examiner should review the entire claims file and should indicate that such review was completed in the opinion report. If deemed appropriate, the examiner should contact the Veteran for an additional examination. The examiner is asked to provide an addendum opinion to the February 2014 opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s diabetes mellitus, type II, is related to his active duty military service. In providing the requested opinion, the examiner should consider all relevant evidence of record, including both medical and lay evidence, citing to specific evidence where appropriate. The examiner is asked to elicit a history of symptomology from the Veteran and provide an estimated date of onset of the condition, if possible. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran’s statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner 4. After associating all newly obtained evidence with the claims file, provide a copy of the file, including a copy of this remand, to an appropriately qualified examiner for an opinion regarding the nature and etiology of the Veteran’s bilateral hearing loss. The examiner should review the entire claims file and should indicate that such review was completed in the opinion report. If deemed appropriate, the examiner should contact the Veteran for additional information or examination. The examiner is asked to provide an addendum opinion to the February 2014 opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s hearing loss is related to his active duty military service. In providing the requested opinion, the examiner should consider all relevant evidence of record, including both medical and lay evidence, citing to specific evidence where appropriate. The examiner is reminded that exposure to acoustic trauma has been conceded, as described above. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran’s statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. After all newly obtained evidence has been associated with the claims file, schedule the Veteran for an examination with an appropriately qualified examiner to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder, to include depressive disorder and PTSD. The entire claims file, including a copy of this remand, must be made available to the examiner and the examination report must reflect that such review was completed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any current acquired psychiatric disorder is related to the Veteran’s active duty military service. The examiner should specifically discuss the evidence outlined above, along with a history of symptomology elicited from the Veteran, and should consider any relevant diagnosis under both DSM-IV and DSM-V criteria. The examiner must provide a comprehensive rationale for all opinions expressed and discuss relevant evidence where appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of   knowledge in the medical community at large and not those of the particular examiner. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ferguson, Associate Counsel 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.