Citation Nr: 21062889 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 19-00 646A DATE: October 12, 2021 ORDER Service connection for diabetes mellitus type II is granted. Service connection for bilateral hearing loss is denied. Service connection for generalized anxiety disorder and major depression disease is granted. Service connection for cause of death is granted. REMANDED Entitlement to service connection for a prostate disability, to include chronic prostatitis and benign prostatitic hyperplasia, is remanded. Entitlement to service connection for a heart disability, to include coronary artery disease and ischemic heart disease, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for status post pulmonary embolism is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. THE APPELLANT'S CONTENTIONS The appellant seeks entitlement to service connection for the Veteran's diabetes mellitus, bilateral hearing loss; prostate disability, to include chronic prostatitis and benign prostatitic hyperplasia; heart disability, to include coronary artery disease and ischemic heart disease; hypertension; status post pulmonary embolism; and an acquired psychiatric disorder prior to his death; as well as entitlement to TDIU. See December 2016 claim; December 2018 notice of disagreement; January 2019 VA Form 9. Prior to his death, the Veteran contended that, in October 1959 he was sent to Germany in the middle of his brother's emotional and mental crisis, and after his brother's death, he fell into a deep depression and became suicidal. He contended that he had depression and anxiety since then. See February 2017 Statement in Support of Claim for Posttraumatic Stress Disorder (PTSD). He also contended that while in Germany, he had the flu several times, pulmonary problems, cramps, problems with his feet due to cold water, ear infections, urinary problems, chronic constipation, heart and circulatory conditions and diabetes, all of which caused his depression and anxiety. Id. He reported constant change of employment, anxiety, deep depression, disinterest in work and jobs, suicidal thoughts, disregard for authority, sadness, and personal appearance disinterest. Id. Prior to the Veteran's death, the Veteran contended that his anxiety, depression, PTSD, heart condition, hearing loss, and prostate condition prevented him from securing or following any substantially gainful occupation; and that he last worked in May 1999. He reported that his previous position was as a teacher through 1994; and that he had a college education. See December 2016 Veteran's Application for Increased Compensation Based on Unemployability. The Veteran's surviving spouse seeks entitlement to Dependency and Indemnity Compensation (DIC) benefits, to include entitlement to service connection for cause of death. FINDINGS OF FACT 1. The Veteran's diabetes mellitus type II had its onset in service. 2. The evidence does not show hearing loss for VA purposes prior to the Veteran's death. 3. Generalized anxiety disorder and major depression disease were onset in service. 4. The Veteran's service-connected diabetes mellitus type II was a substantial contributing factor to his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus type II are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 3. The criteria for entitlement to service connection for generalized anxiety disorder and major depression disease are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for cause of death have been satisfied. 38 U.S.C. §§ 1310, 5103, 5103A, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1958 to January 1960, with additional National Guard service. He died in March 2017. The appellant is his surviving spouse, and she has been substituted for the Veteran for purposes of processing his claims pending at the time of his death to completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In August 2020, the AOJ determined that the appellant was an eligible substitute based on her status as the Veteran's surviving spouse. See August 2020 Notification Letter; Appeal Substitution Review. In January 2021, these issues were remanded by the Board. 1. Diabetes mellitus, type II Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran has a diagnosis of diabetes mellitus type II. See March 2021 VA examination; October 2016 private medical data review by Dr. C.M. The March 2021 VA examiner determined that the Veteran's diabetes mellitus type II was at least as likely as not etiologically related to his military service. A private physician, Dr. C.M., also determined that the Veteran's metabolic disorder was related to service. See October 2016 private medical data review by Dr. C.M. In light of the positive nexus opinions of record, the Board finds that service connection for diabetes mellitus type II is warranted. 2. Bilateral hearing loss As an initial matter, the Board notes that the record shows that the Veteran was in receipt of non-VA medical treatment prior to his death. See, e.g., April 2003 VA Form 21-4142; August 26, 2013 Active Outpatient Medications (noting non-VA medications). The January 2021 Board remand directed the AOJ to obtain all outstanding relevant private treatment records, to include records identified on the VA Form 21-4142 submitted by the Veteran in April 2003. In accordance with the January 2021 remand directives, the Board sent the appellant a letter in February 2021 requesting her to complete an updated VA Form 21-4142, Authorization and Consent to Release Information in order to obtain medical records from Dr. P.S. No response was received. The VA's duty to assist is not a one-way street, and an appellant cannot wait for assistance when she has information essential to the adjudication of her claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). To the extent possible, VA has attempted to assist the appellant. Accordingly, no further attempts to assist are warranted. See Olson v. Principi, 3 Vet. App. 480 (1992). The Board finds there was substantial compliance with the Board's January 2021 remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. For the 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, 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. The Board notes that a private physician, Dr. C.M. diagnosed hearing loss secondary to high noises during military operations. See October 2016 private medical data review by Dr. C.M. The record provided by Dr. C.M. does not show that an audiogram was conducted and no auditory thresholds or speech recognition scores are noted. There is no evidence of record showing hearing loss for VA purposes under 38 C.F.R. § 3.385. See VA treatment records. In order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court noted that Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a bilateral hearing loss disability prior to the Veteran's death, there can be no valid claim. Id.; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). To the extent that the Veteran reported bilateral hearing loss related to his service, the presence of a hearing loss disability for VA purposes is not a simple medical condition capable of lay observation or diagnosis; rather, such a finding requires professionally administered test results satisfying the criteria set out at 38 C.F.R. § 3.385. In the absence of such evidence, the Veteran's claim must be denied. 3. Generalized anxiety disorder and major depression An April 2003 VA examination shows that the Veteran reported anxiousness, restlessness, depressive symptoms, nervousness, and insomnia. In October 2016, a private physician, Dr. C.M. diagnosed generalized anxiety disorder and major depression disease and determined that these conditions were more probable than not secondary to the Veteran's military service. See October 2016 private medical data review by Dr. C.M. A VA medical opinion was obtained in April 2021. The VA clinician reviewed the claims file and determined that the Veteran did not have a diagnosed psychiatric condition. However, in light of the Veteran's contentions regarding his symptoms in service and since service, and the October 2016 private medical opinion showing diagnosis of generalized anxiety disorder and major depression disease which are related to service, the Board resolves doubt in the appellant's favor, and finds that service connection for generalized anxiety disorder and major depression disease is warranted. As there is no evidence that the Veteran had any other acquired psychiatric disorder that were related to service, service connection is not warranted for an acquired psychiatric disorder, aside from generalized anxiety disorder and major depression disease. 4. Service connection for cause of death Benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of the veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). The Veteran's cause of death was acute cerebrovascular accident and aspiration pneumonia. See death certificate. After reviewing the evidence of record, the Board concludes that the Veteran's acute cerebrovascular accident, one of the causes of his death, could have been service-connected during his lifetime. Service-connection is in effect for diabetes mellitus, type II. Significantly, the March 2021 VA DBQ regarding diabetes mellitus shows that the Veteran's stroke is at least as likely as not due to diabetes mellitus. In light of the March 2021 VA medical opinion, the Board finds that entitlement to service connection for cause of death is warranted. REASONS FOR REMAND 1. A prostate disability, to include chronic prostatitis and benign prostatitic hyperplasia A VA medical opinion was obtained in March 2021 regarding the Veteran's prostate disability. The VA clinician stated that the Veteran had a diagnosis of benign prostate hypertrophy (BPH) status post TURP (transurethral resection of the prostate) which was diagnosed in 1991 and that he was followed by a private urologist, Dr. R.H. for this condition. The private medical records from Dr. R.H. are not contained in the claims file. On remand, all relevant outstanding private treatment records, to include medical records from Dr. R.H., should be requested. 2. Hypertension; a heart disability, to include coronary artery disease and ischemic heart disease; and status post pulmonary embolism The Veteran's March 2021 VA disability benefits questionnaire (DBQ) regarding diabetes mellitus shows that the Veteran had cardiac conditions and stroke that were at least as likely as not due to his diabetes mellitus; however, the specific cardiac conditions and type of stroke are not specified. In light of the newly service-connected diabetes mellitus, a VA addendum opinion is warranted to seek an opinion on whether the Veteran's hypertension; heart disability, to include coronary artery disease and ischemic heart disease; and/or status post pulmonary embolism were secondary to the Veteran's diabetes mellitus. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 3. TDIU The appellant's claim for entitlement to TDIU is inextricably intertwined with the pending service connection claims and the evaluations assigned for the conditions which were granted entitlement to service connection in this Board decision. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding private treatment records, to include all records from Dr. R.H., who was identified by the March 2021 VA opinion as a treating physician for the Veteran's prostate condition. 2. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's hypertension; heart disability, to include coronary artery disease and ischemic heart disease; and status post pulmonary embolism. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. Thereafter, the clinician should address the following: a.) Diagnose all hypertension; heart disability, to include coronary artery disease and ischemic heart disease; and/or status post pulmonary embolism conditions. b.) Please state whether it is at least as likely as not (50 percent probability or more) that any condition diagnosed in part (a.) had its onset in, was caused by, or is otherwise related to service. c.) Please state whether it is at least as likely as not (50 percent probability or more) that any condition diagnosed in part (a.), was caused by the Veteran's service-connected diabetes mellitus. d.) Please state whether it is at least as likely as not (50 percent probability or more) that any condition diagnosed in part (a.) was aggravated by the Veteran's service-connected diabetes mellitus. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The VA clinician should specifically acknowledge and consider the Veteran's March 2021 VA DBQ noting that the Veteran had cardiac conditions and stroke that are at least as likely as not due to diabetes mellitus. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. K. A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.