Citation Nr: 21067379 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-38 450A DATE: November 4, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to an evaluation in excess of 60 percent for service-connected lung cancer is remanded. Entitlement to service connection for skin cancer as a result of herbicide exposure is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to October 1975. In an April 2021 statement, the Veteran withdrew his previous request for a hearing. As such, the Board will proceed to consider the claims without the benefit of a hearing. As an initial matter, the Board notes that the Veteran indicated in his August 2018 substantive appeal that he is in constant excruciating and debilitating pain at the incision site related to his left lung removal. The Board notes that the Veteran was already granted service connection separately for a scar, residual of lung cancer, in a March 2015 rating decision, and the Veteran did not submit a notice of disagreement (NOD) with regard to the evaluation assigned to this disability. If the Veteran would like to file a claim for an increased rating for this service-connected disability, he is free to do so, as such a claim is currently not before the Board. The Veteran also stated in his August 2018 substantive appeal that he has heart issues due to Agent Orange exposure. All claims must be filed using VA's standardized claims form. If the Veteran would like to file a claim for service connection for a heart disability, he is free to do so, as such a claim is currently not before the Board. 1. Entitlement to service connection for bilateral hearing loss and tinnitus is remanded. The Veteran is seeking service connection for bilateral hearing loss and tinnitus. He asserted in an August 2018 substantive appeal that he was exposed to noise from gunfire and mortar fire during service. In a February 2016 statement, the Veteran asserted that he was exposed to noise from rockets, heavy artillery, and armored vehicles. In February 2015, the Veteran underwent a VA audiological examination, at which he was diagnosed with hearing loss and tinnitus. The examiner determined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner noted that the Veteran had normal hearing at the time of separation in 1975, and, therefore, the current loss is less likely as not related to military service. With regard to his tinnitus, the examiner found that there is no evidence of tinnitus treatment or complaint in the Veteran's service treatment records. There is no report of a specific noise event or injury on active duty that initiated tinnitus. In addition, since hearing loss is less likely as not related to military noise exposure, it is also less likely as not that the Veteran's tinnitus is related to military noise exposure. The Board finds that this opinion is inadequate. Specifically, lack of in-service evidence alone is not a sufficient rationale to support a negative opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, the Board finds that a new VA opinion should be obtained addressing the etiology of the Veteran's diagnosed hearing loss or tinnitus. 2. Entitlement to an evaluation in excess of 60 percent for service-connected lung cancer is remanded. The Veteran is seeking entitlement to an increased evaluation for his service-connected lung cancer. The claims file contains no VA treatment records since March 2018. Moreover, the Board notes that the Veteran last underwent a VA examination related to this disability in February 2015. In his February 2016 NOD, the Veteran specifically asserted that this evaluation did not include accurate testing, as he arrived out of breath and was told to wait until his breathing was normal and he was in a relaxed state before testing was administered. In light of the fact that it has been almost 7 years since this disability was last examined and the Veteran took issue with the evaluation done at that time, the Board finds that this issue must be remanded in order to provide the Veteran with a new VA examination and to obtain all outstanding VA treatment records. Further, the Board notes that the Veteran asserted in his August 2018 substantive appeal that he had received relevant treatment at Pearson Cancer Center in Lynchburg, Virginia. Attempts should be made to obtain these records as well. 3. Entitlement to service connection for skin cancer as a result of herbicide exposure is remanded. The Veteran is seeking entitlement to service connection for skin cancer as a result of in-service exposure to herbicides. The Veteran asserted in a February 2016 statement that his skin cancer has existed since leaving service. In-service exposure to herbicides is conceded, as the Veteran served in the Republic of Vietnam from June 1968 to June 1969. VA treatment records note that the Veteran has a history of melanoma in 2008. See VA treatment record, May 2011. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e) (2020). Skin cancer is not a disease listed under 38 C.F.R. § 3.309 (e) as being presumptively associated with herbicide exposure. However, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). In light of the Veteran's assertions, the Board finds that this issue should be remanded in order to obtain a medical opinion on this matter. 4. Entitlement to service connection for PTSD is remanded. The Veteran is seeking service connection for PTSD related to reported combat duty in Vietnam. A review of the service treatment records reveals that he reported nervous trouble of some sort on his August 1975 Report of Medical History. In a February 2015 PTSD Disability Benefits Questionnaire (DBQ), the examiner determined that the Veteran did not have a mental health disorder diagnosis, to include PTSD. In a February 2018 Report of General Information, the Veteran asserted that he had been receiving PTSD treatment from Dr. C in the psychiatry department at the McGuire VA Medical Center (VAMC). The Board notes that VA treatment records reflect that he has been prescribed Sertraline throughout the course of this appeal and has been noted as having PTSD. See VA treatment record, November 2016. VA treatment records reflect that the Veteran has sought treatment from Dr. C, the attending psychiatrist at the McGuire VAMC. In light of the fact that the Veteran has been seeking psychiatric treatment and prescribed psychiatric medications, and he complained of nervous trouble upon separation from service, the Board finds that the Veteran should be provided a new VA examination to diagnose him with all current psychiatric disabilities and to determine the etiology of these disabilities. The matters are REMANDED for the following action: 1. Associate with the claims file all outstanding treatment records from the Hunter Holmes McGuire VAMC and associated outpatient clinics from April 2012 to October 2016, and from March 2018 to the present. 2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the RO to obtain any outstanding, pertinent private medical records, to specifically include records from the Pearson Cancer Center in Lynchburg, Virginia. Request all identified records. Associate any records received, including negative responses, with the claims file. 3. Provide the claims file to an appropriate VA examiner so that an addendum opinion may be obtained regarding the etiology of the Veteran's hearing loss and tinnitus. Upon review of the claims file, the examiner should opine as to whether it is at least as likely as not that any diagnosed hearing loss of either ear or tinnitus began during, or was caused or aggravated by, his active duty service. The examiner should consider the medical literature/studies that the Veteran has submitted in support of this claim and is advised that a lack of in-service evidence alone is not a sufficient rationale to support a negative opinion. Buchanan, supra. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinion, such should be provided. 4. Schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of his service-connected lung cancer. The examiner is advised to differentiate between symptoms related to the Veteran's service-connected lung cancer and his nonservice-connected chronic obstructive pulmonary disease (COPD), to the extent possible. 5. Schedule the Veteran for a VA examination for his claimed skin cancer. The examiner should review the claims file, conduct any necessary tests and studies, and elicit a complete history from the Veteran. All findings should be reported in detail. Then, the examiner should opine as to whether it is at least as likely as not that the Veteran has had or currently has skin cancer of any kind that had its onset in service, or was otherwise caused or aggravated by a disease or injury in service, to include in-service exposure to herbicides or Agent Orange. The examiner is advised that the fact that a disease or disability is not listed under 38 C.F.R. § 3.309 (e) as being presumptively associated with Agent Orange or herbicide exposure is not a rationale for determining that the Veteran's disability is not related to Agent Orange or herbicides on a direct basis. The examiner should provide a complete rationale for any opinions provided. 6. Schedule the Veteran for a VA examination for his claimed PTSD. The examiner should review the claims file, conduct any necessary tests and studies, and elicit a complete history from the Veteran. All findings should be reported in detail. The examiner should determine whether the Veteran has a psychiatric disability of any kind, to include PTSD. If so, the examiner should opine as to whether it is at least as likely as not that any diagnosed psychiatric disability, to include PTSD, had an onset during service or was caused or aggravated by his active duty, to include any verified/conceded stressors. The examiner should specifically discuss the Veteran's post-service psychiatric treatment and prescribed psychiatric medications, as well as the fact that the Veteran reported nervous trouble upon separation from service. The examiner must provide the underlying reasons for any opinions provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.