Citation Nr: 21065552 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-19 981 DATE: October 26, 2021 ORDER Entitlement to service connection for hypertension, as due to herbicide agent exposure, is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran served in Vietnam during the presumptive period; thus, exposure to herbicide agents is presumed. 2. Prior to his death, the Veteran had a diagnosis of hypertension. 3. Epidemiologic evidence concludes that there is "sufficient" evidence of an association between hypertension and herbicide exposure. 4. The evidence is at least in equipoise as to whether the Veteran's diagnosed hypertension is related to his presumed exposure to herbicide agents during service. 5. Hearing loss is etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for hypertension, as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from September 1968 to July 1971, to include service in the Republic of Vietnam. The Veteran passed away in December 2014. The Appellant in the present appeal is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2013 and October 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Appellant and the Veteran's son testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic claims file. In April 2018, the Board, in pertinent part, remanded the issues on appeal for further development. The issues have returned to the Board. SERVICE CONNECTION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service, and (2) was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted. The presumption of soundness only applies where there has been an entrance examination prior to the period of service on which the claim is based. 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238 (1994) (holding that the presumption of sound condition attaches only where there has been an induction examination in which the later-complained-of disability was not detected). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 38 U.S.C. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for hypertension is granted. The Appellant seeks entitlement to service connection for hypertension, to include as due to herbicide agent exposure. In this case, the record reflects that the Veteran served in the Republic of Vietnam; thus, exposure to herbicide agents has been established. VA regulations do not list hypertension as a presumptive disability associated with herbicide agent exposure. This, however, does not preclude the Veteran from establishing entitlement to service connection on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). However, in November 2018, the NAS upgraded the relationship between hypertension and herbicide exposure from limited/suggestive to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a possible association" between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). NAS serves as an advisor on scientific matters and is comprised of experts in the given field; the Board finds the NAS update highly probative. Pursuant to the April 2018 remand directives, a VA addendum opinion was obtained to determine the nature and etiology of the Veteran's hypertension in May 2019. The examiner indicated that the Veteran had a diagnosis of essential hypertension. The examiner opined that it is less likely as not that the Veteran's hypertension was caused by his military service, to include his service in Vietnam and his presumptive herbicide exposure. As rationale, the examiner simply stated, "I could not locate any documented evidence suggestive of hypertension or its treatment during service or in civilian record immediately after leaving service in provided C-file as per current review." The examiner further indicated that, from medical textbooks, the etiology of essential hypertension is unknown and cannot be due to chemicals of Agent Orange. Additionally, the examiner noted that hypertension is not one of the presumptive disorders of Agent Orange. The examiner's opinion that there is no causal relationship between herbicide exposure and hypertension is conclusory because the examiner did not provide a sufficient rationale. Furthermore, the examiner failed to consider and discuss the 2018 NAS update. Thus, the May 2019 VA opinion is inadequate and of limited probative value. In sum, the Veteran had a diagnosis of hypertension and is presumed to have been exposed to herbicide agents in service. Moreover, as determined, the Board finds probative the epidemiologic evidence supporting at least a positive association between herbicide agent exposure and hypertension. In the present case, there is no evidence to suggest any other etiology that is more likely than not responsible for the onset of the Veteran's hypertension. The Board thus concludes that, at the very least, the evidence of a causal connection to service is in equipoise. Accordingly, resolving any reasonable doubt in the Appellant's favor, the Board finds that the criteria to establish service connection for hypertension are met. 2. Entitlement to service connection for bilateral hearing loss is granted. The Appellant also seeks entitlement to service connection for bilateral hearing loss. She asserts that the Veteran's bilateral hearing loss was caused by in-service noise exposure. At the outset, the Board notes that service connection for tinnitus based on in-service noise exposure has already been awarded. As such, in-service acoustic trauma is conceded. Initially, the Board notes that the Veteran's August 1968 entrance examination included three audiological evaluations two of which noted hearing loss and the last evaluation showing hearing within normal limits bilaterally. A July 2019 VA opinion was obtained in which the examiner determined which reading most accurately reflected the Veteran's hearing at the time of enlistment. The July 2019 VA examiner concluded that the final evaluation, which yielded hearing within normal limits bilaterally, was the most accurate and should be used for comparison purposes with the Veteran's separation examination. The examiner noted that "defective hearing" was crossed off on the entrance examination report and that the Veteran was given a new rating of "1" for hearing loss in the physical profile. Moreover, in the August 1968 report of medical history at enlistment, the Veteran denied hearing loss. Therefore, the Board concludes that the record does not contain clear and unmistakable evidence that the Veteran's hearing loss preexisted his active service. Thus, the presumption of soundness attaches. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Hearing loss is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). First, on VA examination in October 2013, the Veteran was diagnosed with bilateral hearing loss. Therefore, the first element of service connection has been met. Next, as previously indicated, in-service acoustic trauma has been conceded, as the service-connected tinnitus is based on in-service noise exposure. As such, because in-service noise exposure has been established, the second element of an in-service incurrence has been met. Next, as to continuity, the Veteran indicated that he had experienced hearing loss since service. See December 2013 notice of disagreement (NOD); May 2014 VA Form 9. While there is an absence of complaints of or treatment for hearing loss for many years after service separation, the Board has resolved reasonable doubt in the Appellant's favor and finds that the Veteran had continuous symptoms of hearing loss since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Finally, as to nexus, on examination in October 2013, the VA examiner did not provide an etiology opinion regarding the Veteran's bilateral hearing loss. In an addendum opinion, a July 2017 VA examiner was unable to provide a nexus between the Veteran's hearing loss and service because the Veteran's service treatment records were negative for hearing loss. While the record does not include a medical opinion that indicates a nexus between the Veteran's hearing loss with service, the Board does not need to reach the weight assignable to any medical opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic disease" of hearing loss (38 C.F.R. § 3.309 (a)) based on a finding of "continuous" symptoms of hearing loss since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in service and continuous symptoms of hearing loss since service; therefore, hearing loss is presumed to have been incurred in service and the appeal is granted. Furthermore, in light of the Veteran's conceded noise exposure in service and the fact that service connection for tinnitus based on in-service noise exposure has already been awarded, the Board finds that service connection for bilateral hearing loss is warranted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of hearing loss since service separation, all other service connection theories are rendered moot. REASONS FOR REMAND The Appellant seeks entitlement to service connection for a TBI and an acquired psychiatric disorder. Regrettably, as discussed below, a remand is required to obtain additional VA medical opinions. 1. Entitlement to service connection for a TBI is remanded. The Appellant has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the April 2018 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain a VA opinion to determine the nature and etiology of the claimed TBI. The Board noted that the Veteran's October 2013 VA examination regarding his claimed TBI did not provide a thorough rationale for the determination that the Veteran never had a TBI. See April 2018 Board remand. Thus, the Board directed the AOJ to obtain a new medical opinion in which a more thorough rationale to support the examiner's conclusions was provided. Accordingly, a VA medical opinion was obtained in July 2019. The examiner simply concluded that the Veteran did not have a TBI or any residuals of a TBI. No rationale was provided. As such, the opinion is not currently adequate. Accordingly, to ensure compliance with the directives of the April 2018 remand, a new VA opinion should be obtained. See Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. In the April 2018 remand, the Board also directed the AOJ to obtain a VA opinion to determine the nature and etiology of the Veteran's diagnosed adjustment disorder with mixed depression and anxiety. The examiner was instructed to provide a complete rationale for all opinions provided. Accordingly, a VA medical opinion was obtained in July 2019. The examiner noted the Veteran's diagnosis of adjustment disorder with anxiety and depressed mood and stated, "[a]ssociated with recent stressors. Veteran functioned well until recent health problems." The examiner provided no further explanation or rationale. Therefore, the opinion is not currently adequate. Accordingly, to ensure compliance with the directives of the April 2018 remand, a new VA opinion should be obtained. See id. The matters are REMANDED for the following action: 1. Forward the Veteran's claims folder to an appropriate clinician for review and for an opinion regarding the etiology of the Veteran's claimed TBI. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner must opine as to whether it is at least as likely as not that the Veteran incurred a TBI during active duty service, and if so, if any residuals persisted related to the TBI. All lay statements describing the Veteran's symptoms, manifestations, and onset must be fully considered and discussed. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 2. Then, forward the Veteran's claims folder to an appropriate clinician for review and for an opinion regarding the etiology of the Veteran's acquired psychiatric disorder, to include adjustment disorder with mixed depression and anxiety. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. For each psychiatric disorder present during the period of this claim, the examiner must state whether it is at least as likely as not that such disorder originated during service or is otherwise etiologically related to service. All lay statements describing the Veteran's symptoms, manifestations, and onset must be fully considered and discussed. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Appellant's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Appellant and her representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.