Citation Nr: A21018698 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 200526-116005 DATE: November 23, 2021 ORDER Readjudication of the claim of entitlement to service connection for coronary artery disease is granted. Readjudication of the claim of entitlement to service connection for diabetes mellitus is granted. Readjudication of the claim of entitlement to service connection for an acquired psychiatric disorder is granted. Readjudication of the claim of entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A November 2019 rating decision denied service connection for coronary artery disease, diabetes mellitus, an acquired psychiatric disorder (claimed as posttraumatic stress disorder, or PTSD), and bilateral hearing loss. 2. Evidence received since the November 2019 rating decision was not previously part of the actual record before agency adjudicators and tends to disprove a matter at issue in the claims of entitlement to service connection for coronary artery disease, diabetes mellitus, and an acquired psychiatric disorder (claimed as PTSD). 3. Readjudication of the claim of entitlement to service connection for bilateral hearing loss is warranted to correct a pre-decisional duty to assist error. CONCLUSIONS OF LAW 1. New and relevant evidence sufficient to readjudicate the claim of entitlement to service connection for coronary artery disease has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501. 2. New and relevant evidence sufficient to readjudicate the claim of entitlement to service connection for diabetes mellitus has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501. 3. New and relevant evidence sufficient to readjudicate the claim of entitlement to service connection for an acquired psychiatric disorder has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501. 4. The criteria to warrant readjudication of the claim of entitlement to service connection for bilateral hearing loss has been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1964 to January 1985. He died in July 2020. The appellant is his widow. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2020 by a Department of Veterans Affairs (VA) Regional Office, in which new and material evidence was not found to warrant reopening of the claims now before the Board. In August 2021, the appellant testified before the undersigned at a hearing before the Board. A transcript of that hearing has been associated with the record. At the outset, the Board notes that the issue of entitlement to service connection for a disorder claimed as "neurological issues" was denied in the February 2020 rating decision, and the issue was appealed to the Board. However, as noted at the August 2021 hearing and in a favorable decision issued by the Board that month, that claim was recharacterized as one for Parkinson's disease and granted. Thus, as this represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Finally, the Board notes that the Veteran initially filed a claim of entitlement to service connection for PTSD. However, review of the record shows that the Veteran was diagnosed with other mental health disorders prior to his death; specifically, major depressive disorder. Thus, as the claim is being reopened and remanded, it has been expanded to one for an acquired psychiatric disorder, which encompasses all of the Veteran's mental health diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). New and Relevant Evidence On August 23, 2017, the Veteran's Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA), was signed into law. This law creates a new framework for claimants dissatisfied with VA decisions on their claim to seek review. Under the AMA, when a claim has been previously disallowed it may not be readjudicated upon the same factual basis, unless the claimant submits a supplemental claim along with new and relevant evidence. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.2501, 19.2(a). If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction (AOJ) will readjudicate the claim taking into consideration all of the evidence of record. 38 C.F.R. §§ 3.156 (d), 3.2501. New evidence is evidence that was not previously part of the record before agency adjudicators at the time of the prior denial. 38 C.F.R. § 3.2501 (a). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement to benefits that was not previously addressed. Id. The new and relevant standard will not impose a higher evidentiary threshold than the previous new and material evidence standard. Id. In a November 2019 rating decision, the Veteran's claims of entitlement to service connection for coronary artery disease, diabetes mellitus, an acquired psychiatric disorder (then characterized as PTSD) and bilateral hearing loss were denied. Although the rating decision provided scant explanation, the Board has determined that each claim was denied due to a lack of nexus to service. Thereafter, in January 2020, the Veteran filed a supplemental claim, and submitted a medical opinion from Dr. K.F., in which he opined on the nexus of the Veteran's mental health, coronary artery disease, and diabetes mellitus, attributing them in some manner to his military service. Despite this opinion, in the February 2020 rating decision on appeal, the AOJ declined to find that new and relevant evidence had been received, and did not reopen the Veteran's claims. As noted above, under the AMA, receipt of new and relevant evidence is a fundamental legal requirement for readjudicating a supplemental claim on its merits. Clearly, Dr. K.F.'s letter is new, and as it pertains directly to a nexus between the Veteran's claims and service, the Board finds that it is relevant. 38 U.S.C. § 5108 (a); 38 C.F.R. § 3.2501 (a)(1). Accordingly, readjudication of these claims is warranted at this time and, to this extent, the claims are granted. As for the claim of entitlement to service connection for bilateral hearing loss, considering the evidence of record and in light of the procedural history and the need to correct pre-decisional errors in the duty to assist, the Board finds that readjudication is warranted regarding this claim. By way of history, in the November 2019 rating decision, the Regional Office reopened a previously-denied claim for service connection and made a favorable finding that the Veteran had a "hearing issue," as documented in an October 30, 2019 VA treatment note. However, without a nexus between this hearing issue and service, the claim was denied. Then, in the February 2020 rating decision on appeal, it was determined that the Veteran did not, in fact, have a hearing loss disability per VA regulations and, thus, the decision determined that no new and material evidence had been received since a January 2014 rating decision which initially denied the claim. This decision clearly misapplies the "new and material" evidence standard (as is applicable to legacy appeals claims only), when and where the AOJ should have used the "new and relevant" standard instead. In addition, this rating decision erroneously (and confusingly) references the wrong prior final rating decision. Under the AMA, these errors combine to create a pre-decisional duty to assist error committed by the AOJ. Thus, the Board finds that readjudication of the claim is warranted; to his extent, it is considered reopened. REASONS FOR REMAND As noted above, the Veteran submitted a January 2020 medical opinion from Dr. K.F. with his supplemental claim. As pertains to the Veteran's coronary artery disease and diabetes mellitus claims, Dr. K.F. determined that there was a "significantly high probability" that his heart disease and diabetes were due to his in-service exposure to contaminated water while stationed at Camp Lejeune, North Carolina. The AOJ denied the Veteran's claims, finding that these conditions were not on the presumptive list of conditions associated with exposure to contaminated water at Camp Lejeune. However, the United States Court of Appeals for the Federal Circuit has held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). Here, there is a medical suggestion of a link between the Veteran's diagnosed disabilities and an aspect of his military service. Therefore, it was a pre-decisional duty to assist error to not provide the Veteran with an examination in relation to his claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As for the Veteran's psychiatric claim, in the January 2020 opinion, Dr. K.F. determined that the Veteran's military experiences caused "mental trauma" which had "lasting effects" on the Veteran. The Board acknowledges that this opinion lacks a rationale for its explanation and fails to employ the proper standard in determining the etiology of the Veteran's psychiatric disorder. However, it finds that the AOJ's decision not to obtain a VA examination, based on the multiple psychiatric diagnoses in the record and the suggestions contained in Dr. K.F.'s letter, constitutes a pre-decisional duty to assist error. Upon remand, a VA medical opinion should be obtained. See McLendon, supra. Finally, as pertains to the hearing loss claim, the Board finds that the February 2020 rating decision is self-contradictory and does not reflect the contents of the actual evidence of record at the time it was issued. In addition to using the wrong standard, and addressing the wrong rating decision, as noted above, the AOJ found that the Veteran did not have a hearing loss disability, but subsequently repeated the favorable finding that a hearing disorder (characterized as an "issue") was present. The Board acknowledges that the standard for determining the presence of a hearing loss disability for VA purposes is present is set forth in the regulations, and the February 2020 rating decision found, without explanation, that a hearing loss "issue" was present. There was no explanation as to whether the Veteran's conceded hearing loss was of a level sufficient to be a disability. However, in reviewing the evidence of record, the Board finds that an August 2018 VA audiologist clearly diagnosed the Veteran with sensorineural bilateral hearing loss, bilaterally. Despite such a finding, it is unclear from the context whether this diagnosis meets the criteria for a disability. Specifically, in a VA treatment note dated August 20, 2018, the audiologist acknowledged a January 2014 VA examination which found moderate high-frequency bilateral sensorineural hearing loss and excellent speech discrimination; she then explained that she had performed an audiogram and that the Veteran had mild to severe sensorineural hearing loss in his right ear and mild to moderate sensorineural hearing loss in his left ear. She explained that his speech discrimination scores had worsened significantly and that a copy of her audiogram was available in the Computer Patient Record System (CPRS). There is no evidence that this audiogram was obtained or considered by the AOJ when it was determined that the Veteran had a hearing loss "issue." Further, the Board notes that in January 2014, the Veteran was granted service connection for tinnitus, due to in-service noise exposure. Thus, noise exposure has been conceded and there is a suggestion from the evidence that the Veteran had a hearing loss "issue" which may or may not have reached the level of VA disability. To date, the AOJ provided inconsistent and contradictory findings in evaluating the Veteran's claim, which the Board finds is a duty to assist error. Upon remand, the VA records and a medical opinion addressing the Veteran's hearing loss should be obtained. McLendon, supra. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate VA clinician addressing the etiology of the Veteran's coronary artery disease. Specifically, after reviewing the Veteran's record, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's heart disease had its onset during, or is otherwise related to, his military service, to include his conceded exposure to contaminated water while stationed at Camp Lejeune. In so doing, the examiner is cautioned that a negative opinion cannot be based solely on the fact that the Veteran's diagnosis is not on the presumptive list of conditions associated with exposure to contaminated water at Camp Lejeune but must take into account the Veteran's specific medical and military history, to include risk factors, familial history, and chronicity of symptoms. A rationale for any opinion offered should be provided. 2. Obtain a medical opinion from an appropriate VA clinician addressing the etiology of the Veteran's diabetes mellitus. Specifically, after reviewing the Veteran's record, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diabetes mellitus had its onset during, or is otherwise related to, his military service, to include his conceded exposure to contaminated water while stationed at Camp Lejeune. In so doing, the examiner is cautioned that a negative opinion cannot be based solely on the fact that the Veteran's diagnosis is not on the presumptive list of conditions associated with exposure to contaminated water at Camp Lejeune but must take into account the Veteran's specific medical and military history, to include risk factors, familial history, and chronicity of symptoms. A rationale for any opinion offered should be provided. 3. Obtain a medical opinion from an appropriate VA clinician addressing the etiology of the Veteran's acquired psychiatric disorder. Specifically, after reviewing the Veteran's record, the clinician is asked to identify all psychiatric disorders present and, in regard to each, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disorder had its onset during, or is otherwise related to, his military service. A rationale for any opinion offered should be provided. 4. Obtain a copy of the August 2018 VA audiology examination and associate it with the record. The AOJ is advised that such may be contained in CPRS. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such record does not exist or that further efforts to obtain such record would be futile, which should be documented in the claims file. 5. Once the August 2018 audiology examination is associated with the record, obtain a medical opinion from an appropriate VA audiologist addressing the etiology of any hearing loss disability. Specifically, after reviewing the Veteran's record, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any hearing disability had its onset during, or is otherwise related to, the Veteran's military service, to include as due to conceded in-service noise exposure. A rationale for any opinion offered should be provided. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.