Citation Nr: 21003745 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 18-41 319 DATE: January 22, 2021 REMANDED Entitlement to a higher disability rating for service-connected bilateral hearing loss is remanded. Entitlement to service connection for a bladder condition is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to November 1970, to include service in Vietnam. These matters come before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a December 2020 Board hearing and a transcript is of record. 1. Entitlement to a higher disability rating for service-connected bilateral hearing loss is remanded. The Veteran testified that his hearing has worsened over the last couple of years and that he was provided with new hearing aids just about a year ago. The Board also acknowledges it has been about four years since the Veteran was last examined for his hearing condition. While passage of time does not automatically warrant a remand for a new examination, the Board finds that four years is a significant period of time and concludes that a new examination is necessary to determine the current severity considering his testimony. 2. Entitlement to service connection for a bladder condition is remanded. 3. Entitlement to service connection for hypertension is remanded. 4. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, is remanded. The Veteran attributes his bladder condition, hypertension, and peripheral neuropathy of the bilateral lower extremities to his in-service exposure to Agent Orange. He testified that he first noticed these symptoms around 2011/2012. Although unclear as to the names, the Veteran testified that doctors have told him that these conditions are due to his Agent Orange exposure. Initially, the Board notes that his in-service exposure to Agent Orange has been conceded based on his service in Vietnam. However, the Board finds that remand is required for the following reasons. Bladder condition, hypertension, and non-early-onset peripheral neuropathy are not the diseases noted to be associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). While the list includes “early onset peripheral neuropathy,” early onset peripheral neuropathy is considered “early onset if abnormalities appear within 1 years after external exposure.” Nat’l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 11 (2018) at 460. In this case, the Veteran testified that he first noticed his peripheral neuropathy symptoms (ie. loss of feeling in the feet) during one of his private post-service treatment session shortly before establishing care with the VA in the early 2010s. Regardless, under Combee, service connection may still be awarded based on that exposure on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Veteran underwent a VA examination in 2016 for his peripheral neuropathy condition—during which time a negative direct service medical opinion was provided—but the examiner at the time failed to opine as to the potential etiology between the conceded exposure to Agent Orange and his peripheral neuropathy condition. Thus, the Board finds that remand is required for another VA medical nexus opinion. With regards to his hypertension and bladder condition, it appears that the Veteran has been diagnosed with hypertension and various bladder conditions during the appeal period. The Veteran relayed being told by doctors (although unable to recall as to whom) that these conditions are due to his exposure to Agent Orange, and the Board notes that the suggestion of a relationship by a physician is sufficient to trigger VA’s duty to further develop the evidence. The Veteran has not yet been afforded any examination for either condition, and there are no other medical etiology opinions that address the possible relationship between his current bladder condition/hypertension and his Agent Orange exposure in service. Thus, the Board finds that remand is required for obtaining VA examinations/medical nexus opinions for these conditions. Moreover, it is necessary to update VA records as the Veteran’s claims file has treatment records only up to September 2019. Last, but not least, the Board acknowledges the Veteran’s testimony that he saw a private doctor for these conditions prior to establishing care with the VA around 2010/2011. However, as no specific details were provided during the Board hearing (other than his primary care medical provider, Dr. Franz), it is not entirely clear as to whether there remain any outstanding private treatment records. As these matters are being remanded anyway, the Board will request any outstanding private treatment records. These matters are REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records from September 2019 to the present. 2. Ask the Veteran to complete a release authorizing VA to obtain his records for any private treatment he has received for these conditions, to include any treatment records from Dr. Franz and/or the physician(s) he saw prior to establishing care with VA. If any records are requested but not received, advise the Veteran of that fact. 3. DO NOT SCHEDULE THE FOLLOWING until all the records identified above have been obtained to the extent they exist. 4. Schedule the Veteran for a VA hearing loss examination. 5. Schedule the Veteran for VA examinations to obtain etiology opinions for the claimed conditions. The examiner must review the complete claims file, including this remand. Then, the examiner should opine whether the Veteran’s hypertension, peripheral neuropathy of the bilateral lower extremities, and bladder condition (diagnoses in the VA records include urinary incontinence, UTI, and "incomplete emptying" of bladder) are at least as likely as not related to his conceded Agent Orange exposure in service. The examiner must provide a complete rationale for any opinion based on the examiner’s medical expertise, medical principles, and the evidence in the appellate record. The examiner is requested to consider the National Academy of Sciences' report, "Veterans and Agent Orange," 2018 update, which concluded that there was "sufficient" evidence of an association between the chemicals of interest in herbicide agents and hypertension. However, the examiner is advised that simply stating a condition is not on the list of diseases presumptively associated with Agent Orange exposure is not sufficient rationale for a negative opinion. The examiner should provide a complete rationale for any opinions provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.