Citation Nr: 21066674 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-60 740 DATE: November 1, 2021 ORDER New and material evidence having been received; the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received; the claim of entitlement to service connection for tinnitus is reopened. New and material evidence having been received; the claim of entitlement to service connection for diabetes mellitus is reopened. New and material evidence having been received; the claim of entitlement to service connection for hypertension is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection, to include as due to environmental exposure, for diabetes mellitus is remanded. Entitlement to service connection, to include as due to environmental exposure, for hypertension is remanded. Entitlement to service connection, to include as due to environmental exposure, for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for chronic kidney disease is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The claims for service connection for bilateral hearing loss, tinnitus, diabetes mellitus, and hypertension were denied in an unappealed January 2013 rating decision. 2. Evidence submitted since the January 2013 rating decision includes information that was not previously considered by VA and that establishes a fact necessary to substantiate the claims for service connection for bilateral hearing loss, tinnitus, diabetes mellitus, and hypertension, and therefore creates a reasonable possibility of substantiating those claims. CONCLUSIONS OF LAW 1. The January 2013 rating decision that denied entitlement to service connection for bilateral hearing loss, tinnitus, diabetes mellitus, and hypertension is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the January 2013 rating decision and the requirements to reopen the claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received since the January 2013 rating decision and the requirements to reopen the claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been received since the January 2013 rating decision and the requirements to reopen the claim of entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. New and material evidence has been received since the January 2013 rating decision and the requirements to reopen the claim of entitlement to service connection for hypertension have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In May 2021, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board held the record open for 90 days for the Veteran to submit additional relevant evidence. New and Material VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. The Veteran's service connection claims for bilateral hearing loss, tinnitus, diabetes mellitus and hypertension were originally denied in a January 2013 rating decision. With regard to these claims, the Veteran perfected his appeal to the Board; however, in May 2015, he withdrew those appeals. Accordingly, the January 2013 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Bilateral Hearing Loss and Tinnitus A review of the January 2013 rating decision shows the Agency of Original Jurisdiction (AOJ) denied the service connection claim for bilateral hearing loss based on a December 2012 VA examination report. Although bilateral hearing loss was diagnosed, the examiner provided a negative nexus opinion based on a finding that due to the Veteran's military occupational specialty (MOS) working in a supply room, that it was very unlikely that noise levels he was exposed to would have exceeded safe limits. In addition, the examiner provided a negative nexus opinion for the diagnosed tinnitus based on the Veteran's report that the condition began years after service. The examiner also opined that it was at least as likely as not that the tinnitus was associated with the bilateral hearing loss. However, following the January 2013 rating decision, in his April 2015 VA Form 9, Substantive Appeal, the Veteran asserted that he worked on the flight line at Hunter Army Airfield performing helicopter training. He also stated that his barracks were in close proximity to the flight line and that he was exposed to aircraft noise 24 hours per day. A review of his DD Form 214 shows that he was stationed at Hunter Army Airfield. The Board finds this evidence raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss and tinnitus. Accordingly, the petition to reopen these claims is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade, 24 Vet. App. 110. Diabetes Mellitus and Hypertension A review of the January 2013 rating decision shows the AOJ denied the service connection claims for diabetes and hypertension on the basis that those conditions were not shown to have occurred during service, or within one year following service. Evidence added to the claims file following the January 2013 rating decision includes an April 2015 VA Form 9, in which the Veteran asserted that he was exposed to chemicals during service, and that his exposure to those chemicals "affected his health." Specifically, the Veteran asserted that he was exposed to diesel, gas, benzene, pesticides (including DDT and chlordane) and solvents (including trichlorethylene and chloroethylene). He further asserted that Hunter Army Airfield was an EPA superfund site. A review of the United States Environmental Protection Agency (EPA) website does show an incident category for dioxin for Hunter Army Airfield. See https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0401874. In addition, he submitted a Wikipedia entry for Trichloroethylene, and an article regarding groundwater conditions and studies for Hunter Army Airfield. The Board finds this evidence raises a reasonable possibility of substantiating the claims of entitlement to service connection for diabetes and hypertension. Accordingly, the petition to reopen these claims is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade, 24 Vet. App. 110. REASONS FOR REMAND Initially, the Board notes that in a December 2012 letter, the Veteran stated that he had applied for Social Security Administration (SSA) benefits, which were granted effective February 2011. However, a review of the claims file shows that no attempts to obtain SSA records have been made. Accordingly, in order to properly adjudicate these issues on appeal, efforts should be made to obtain SSA records. Bilateral Hearing Loss and Tinnitus A review of the service treatment records (STRs) shows the Veteran was assessed with hearing difficulty at entry to service, and he reported having ear, nose and throat (ENT) trouble. See October 1966 Enlistment Examination. Additionally, a review of a July 1966 audiogram shows high frequency hearing loss. In general, a veteran is considered to have been in sound condition when examined and accepted for service, except as to defects, infirmities, or disorders noted on his entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Accordingly, hearing loss was shown to have been present at the time he entered service. As noted above, the Veteran underwent a VA hearing loss and tinnitus examination in December 2012, and the examiner provided a negative nexus opinion. However, the examiner did not address whether any preexisting hearing loss was aggravated by the Veteran's service. The Board additionally finds the examiner's rationale inadequate. In this regard, the Veteran has competently reported exposure to helicopter noise during his period of active duty as his DD Form 214 shows he was stationed at Hunter Army Airfield. Therefore, the Board finds his reports of exposure to helicopter noise supported by the evidence of record. Accordingly, another VA examination is necessary to properly adjudicate this issue on appeal. Lastly, the Board notes that the Veteran's tinnitus has been found directly related to his bilateral hearing loss. Accordingly, that issue is intertwined with the bilateral hearing loss claim on appeal. Diabetes Mellitus, Hypertension and COPD As noted above, the Veteran asserts that his diabetes and hypertension are etiologically related to environmental exposure during service, including due to exposure to diesel, gas, benzene, pesticides (including DDT and chlordane) and solvents (including trichlorethylene and chloroethylene). Additionally, a review of EPA records shows dioxin as an incident category related to Hunter Army Airfield. During his May 2021 Board hearing, he additionally testified that his COPD was also related to "all types of chemicals and toxins" during service. However, VA examinations have not been obtained with regard to these claims on appeal, and the Board in unable to exercise its own independent judgment to resolve these medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, in order to properly adjudicate these issues on appeal, VA examinations are necessary. Acquired Psychiatric Disorder The Veteran seeks entitlement to service connection for an acquired psychiatric disorder. Specifically, he asserts that his acquired psychiatric disorder is related to his service. Alternatively, he asserts that his acquired psychiatric disorder is secondary to his medical conditions. He is currently not service-connected for any disability. The Board also notes that the October 1966 enlistment examination shows the Veteran reported having depression or excessive worry and frequent trouble sleeping, and a clinician assessed him with mild anxiety. Additionally, his September 1969 separation examination also shows the Veteran reported having depression or excessive worry and the clinician noted symptoms of "routine worries, etc." Therefore, a preexisting psychiatric disorder was shown at the time of his entry to service. For principles outlined above, a VA examination is necessary to address whether any preexisting psychiatric disorder was aggravated by service. TDIU Lastly, the claim for a TDIU is inextricably intertwined with the remaining claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); 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 cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Obtain any outstanding SSA records. If these records are unavailable, a written statement to this effect must also be incorporated into the claims file. 3. After completion of steps 1 and 2 above, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his diagnosed bilateral hearing loss (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should provide the following opinions: (a) Does the Veteran have a bilateral hearing loss disability that clearly and unmistakably (i.e., undebatably) existed prior to his enlistment in service (prior to October 1966)? The examiner is asked to consider the STRs including the July 1966 audiogram showing high frequency hearing loss and the October 1966 enlistment examination noting hearing difficulty. The examiner is asked to address whether this is clear and unmistakable evidence of a pre-existing hearing loss. (b) If so, is there clear and unmistakable evidence that any pre-existing bilateral hearing loss was not aggravated (i.e., is it undebatable that the disability did not undergo a permanent increase in severity) during the Veteran's period of active service. If the Veteran's pre-existing bilateral hearing loss disability did undergo a permanent increase in severity, was that permanent increase in severity during service clearly and unmistakably due to the natural progress of the condition? The examiner is asked to consider the Veteran's in-service exposure to helicopter noise. (c) If his bilateral hearing loss is not found to have preexisted service, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any bilateral hearing loss is etiologically related to the Veteran's service? The examiner is asked to consider the Veteran's in-service exposure to helicopter noise. Please explain why or why not for each question asked. 4. After completion of steps 1 and 2 above, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his diagnosed diabetes mellitus, hypertension and COPD (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed diabetes mellitus, hypertension and COPD is etiologically related to his period of service? The examiner is asked to consider the Veteran's assertion that his diagnosed diabetes mellitus, hypertension and COPD is etiologically related to in-service exposure to diesel, gas, benzene, pesticides (including DDT and chlordane) and solvents (including trichlorethylene and chloroethylene), and his submitted Wikipedia article regarding trichloroethylene and groundwater conditions and studies regarding Fort Stewart-Hunter Army Airfield. The examiner is also asked to consider EPA's superfund site information for Hunter Army Airfield (see https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0401874). Please explain why or why not for each question asked. 5. After completion of steps 1 and 2 above, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed psychiatric disorder. The examiner should provide the following opinions: (a) Provide a full multiaxial diagnosis. Specifically, state whether each criterion for a diagnosis of PTSD is met. Otherwise, provide a diagnosis for any acquired psychiatric disorder. (b) If a diagnosis of PTSD is appropriate, identify each stressor event upon which the diagnosis is based. (c) With respect to any psychiatric disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether the psychiatric disorder clearly and unmistakably (i.e., undebatably) existed prior to his enlistment in service (prior to October 1966)? The examiner is asked to consider the October 1966 enlistment examination showing the Veteran reported having depression or excessive worry and frequent trouble sleeping, and an assessment for mild anxiety. (d) If so, is there clear and unmistakable evidence that the pre-existing psychiatric disorder was not aggravated (i.e., is it undebatable that the psychiatric disorder did not undergo a permanent increase in severity) during the Veteran's period of active service. If the pre-existing psychiatric disorder did undergo a permanent increase in severity, was that permanent increase in severity during service clearly and unmistakably due to the natural progress of the condition? The examiner is asked to consider the September 1969 separation examination showing the Veteran reported depression or excessive worry and a clinician noted symptoms of "routine worries, etc." (e) For any psychiatric disorder that did not pre-exist his active service, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder is etiologically related to the Veteran's service? The examiner is asked to consider the Veteran's lay statements that there was a lot of stress in his unit following the assassination of Dr. Martin Luther King, including as a result of riot training at that time. (f) Additionally, opine as to whether it at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder was caused or aggravated by any disability. Please explain why or why not. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 6. Thereafter, the RO should readjudicate the claims on appeal, to include the claim for a TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.