Citation Nr: 21002327 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-01 302 DATE: January 13, 2021 REMANDED Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disability and/or as due to asbestos exposure is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1983 to March 1988. In February 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In October 2018, the Board, in pertinent part, remanded the Veteran’s appeal for evidentiary development. During development, a September 2020 rating decision granted entitlement to service connection for obstructive sleep apnea (50 percent, effective October 15, 2008) and hypertension (10 percent, effective October 15, 2008). As such, those issues are no longer on appeal. The remaining issues, as they have been characterized above, have since been returned to the Board for further consideration. 1. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disability and/or as due to asbestos exposure is remanded. A review of the record reveals that a remand is necessary to ensure substantial compliance with the Board’s October 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran and his representative have alleged that the Veteran’s diabetes mellitus is due to service, to include as due to Agent Orange exposure, ionizing radiation, and/or asbestos exposure. The Board observes that a December 2015 VA memorandum found that there is not enough evidence of record to concede exposure to herbicides, to include Agent Orange. To date, no additional evidence has been received and any further attempts to verify any alleged exposure would appear to be futile. Furthermore, the Veteran’s claimed disabilities are not listed in the presumptive conditions associated with radiation-exposed veterans. See 38 C.F.R. § 3.311 (2019). Nevertheless, service connection may be granted if shown to be related to service or such in-service exposure. The Board also observes an October 2015 deferred rating decision, which determined that the Veteran’s military occupational specialty of Computer Number Control (CNC) Technician is associated with minimal to moderate probability of exposure to asbestos in-service. Importantly, the Veteran included a February 2016 report from Dr. James in support of his claim. Dr. James stated that he has been treating the Veteran for several conditions, including diabetes mellitus. He also stated that: The hypertension and diabetic conditions were first diagnosed while he served in the United States Navy. A workup at that time by Naval physicians, consistent with the standard of care at that time, diagnosed those conditions. Post discharge from the Navy, he had continued treatments by his civilian primary care physician. It was after the unfortunate death of that physician that I continued the care of those chronic illnesses. The hypertension and diabetic states must be considered as lifelong ailments. Please accept this letter as confirmation that these conditions have been present since he was serving in the Navy and will remain needing treatment lifelong. It is unclear upon what, other than the Veteran’s history this finding was made, as it does not appear to be confirmed by any service treatment records on file. Pursuant to the Board’s October 2018 remand, the Veteran received a VA examination in August 2020, wherein a diagnosis of diabetes mellitus was confirmed (dated 1986). Ultimately, the examiner determined that the condition is less likely than not attributable to service. The examiner reasoned “Though the underlying pathophysiology of the veteran’s diabetes was at least as likely as not already underway in service and soon after service (due to obstructive sleep apnea), STRs do not show evidence of manifestations (diabetic level blood sugars) within 1 year of service.” There were no further remarks. As discussed above, during evidentiary development, service connection was granted for obstructive sleep apnea and hypertension. The Veteran maintains that his diabetes mellitus may be secondary to any service-connected disabilities. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2019). 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also 38 C.F.R. § 3.310(b). Importantly, and contrary to the Board’s remand directives, an etiological opinion as to the theory of secondary service connection was not provided. Therefore, the Board finds that an addendum opinion is required in this instance. 2. Entitlement to service connection for bilateral hearing loss is remanded. Again, a review of the record reveals that a remand is necessary to ensure substantial compliance with the Board’s October 2018 remand directives. The Veteran seeks entitlement to service connection for bilateral hearing loss Essentially, he contends that his bilateral hearing loss is due to acoustic trauma experienced in-service, to include high frequency noises while serving as submariner. Service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2019). In February 2016, the Veteran testified that his hearing problems onset in-service, where he was exposed to high frequency noises. He also stated that the submarine he was aboard would often change depths, which caused his ears to pop due to changes in the water pressure. Pursuant to the Board’s October 2018 remand, the Veteran received a VA audiological examination in August 2020, wherein a diagnosis of bilateral hearing loss for VA purposes was established. However, the examiner determined that the condition is less likely than not attributable to service. The examiner provided the following remarks: DD 214-DOS: Nov 02, 1983 Mar 18, 1988, MOS of Sonar Technician (Submarine) (STS) (4) which had a Low probability for hazardous noise exposure. Various medals and decorations including but not limited to: File was reviewed. Medical Examination: Audiogram (Nov. 1983) Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 0 0 0 0 0 Right 0 0 0 0 0 Audiogram (Jan. 1986) Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 10 5 0 5 5 Right 5 5 5 0 5 The VA e-folder entrance and separation exam indicated the hearing sensitivity is within normal limits. The Vet had MOS of Low probability for hazardous noise exposure. Based on current evidences the noise exposure did not cause a hearing loss. The Veteran’s hearing loss is less likely than not related to military service, due to history of WNL of entrance and separation exams. In an October 2020 statement, the Veteran challenged the adequacy of the previous VA opinion, reasoning that there is insufficient rationale and conflicting information. It is also alleged that the prior VA examiner did not acknowledge the Veteran’s subjective complaints of hearing loss sustained during service and did not determine whether the hearing loss is based on acoustic trauma or age. Given the Veteran’s statements, the Board finds that further clarification in the form of addendum opinion is needed. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Here, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, these issues are inextricably intertwined. 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 decision on one issue cannot be rendered until a decision on the other issue has been rendered). Remand of the TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Arrange for an addendum opinion from an examiner of appropriate expertise to determine the nature and etiology of his claimed diabetes mellitus. The examiner is to be provided access to the Veteran’s electronic claims file and must specify in the report that these records have been reviewed. Following a review of the full record, the examiner should respond to the following: (a) Did the Veteran’s diabetes mellitus manifest in-service or within one year of his separation from service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s diabetes mellitus had its onset in, or is otherwise related to, the Veteran’s military service, to include potential exposure to asbestos? (c) If not directly related to service, please offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran’s diabetes mellitus was caused by any other service-connected disability. (d) The examiner should then opine whether the Veteran’s diabetes mellitus is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by a service-connected disability. The examiner should provide a complete rationale for any opinions expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also address and reconcile any prior reports (including the February 2016 report from Dr. James), as well as any other pertinent evidence of record. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, then the Veteran should be scheduled for such an examination. 2. Arrange for an addendum opinion from the August 2020 VA audiologist (or a similarly suited examiner) to determine the nature and etiology of the Veteran’s claimed bilateral hearing loss. The audiologist is to be provided access to the Veteran’s electronic claims file. The audiologist is requested to review all pertinent records associated with the claims file, the Veteran’s service treatment records, post-service medical records, and the Veteran’s own assertions. Any indicated diagnostic tests and studies should also be accomplished. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and in-service noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran, the audiologist should provide a fully reasoned explanation. The VA audiologist must opine whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s bilateral hearing loss manifested in-service or is otherwise causally or etiologically related to his military service, to include potential in-service noise exposure. It should also be indicated whether the hearing loss is the type typically seen in cases of acoustic trauma, or is more likely due to advancing age, infection, or other cause. The examiner should also address and reconcile any prior reports, as well as any other pertinent evidence of record, as necessary. The rationale for any opinions offered should be provided. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, then the Veteran should be scheduled for such an examination. 3. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. The issue of entitlement to a TDIU should be adjudicated as well. If a report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.