Citation Nr: 21072936 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-00 136 DATE: December 6, 2021 REMANDED Entitlement to an initial compensable rating for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for residuals of malaria is remanded. Entitlement to service connection for a back disability, including osteoarthritis, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune or secondary to malaria, is remanded. Entitlement to service connection for a bilateral hand disability, including osteoarthritis, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune or secondary to malaria, is remanded. Entitlement to service connection for bilateral hip disability, including osteoarthritis, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune or secondary to malaria is remanded. Entitlement to service connection for a bilateral knee disability, including total knee replacement and osteoarthritis, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune or secondary to malaria, is remanded. Entitlement to service connection for a disability manifested by numbness, tingling and weakness throughout body, claimed as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for a sinus disability, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for a prostate disability, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for colon polyps, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for borderline diabetes, also diagnosed as impaired fasting glucose, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1967 to February 1971, including combat service in the Republic of Vietnam. He is the recipient of a Purple Heart Medal. In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Entitlement to an initial compensable rating for left ear hearing loss and entitlement to service connection for right ear hearing loss are remanded. The Veteran was lasted afforded a VA examination addressing the severity of his hearing loss in January 2016, almost six years ago. Importantly, the Veteran's hearing testimony indicates that his hearing loss may have increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left ear hearing loss. The January 2016 VA examiner found that the Veteran's right ear hearing loss was not related to in-service noise exposure. The examiner primarily relied on the fact that the Veteran had normal hearing at separation. However, the Veteran does not have to show hearing loss at the time of discharge in order to establish service connection. See Hensley v. Brown, 5 Vet. App. 155 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, the examiner indicated that baseline audiometry at entry was not available for review, which is incorrect as a December 1966 entrance examination is of record. Moreover, the service examinations appear to show an upward threshold shift in the right ear from entrance until the Veteran's discharge examination in February 1971. Thus, the opinion is inadequate as the examiner did not appear to consider all the relevant evidence or, in light of such, provide sufficient rationale for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As such, the Board finds that another etiological opinion with rationale is necessary. Moreover, the Veteran testified that he gets his hearing aids through the VA medical center. Thus, additional VA clinical records dated from May 2017 to the present should be obtained. Entitlement to service connection for residuals of malaria is remanded. Service treatment record show that the Veteran was treated for malaria from August 1969 to September 1969. At the Board hearing, the Veteran testified that he suffered from residuals of malaria, including body aches and fatigue. The Veteran has not been afforded a VA examination to determine whether he has any residuals due to his in-service malaria. Given the in-service incident as well as the lay statements indicating current symptoms, the Veteran should be afforded a VA examination to determine whether he has any current residuals of malaria. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to service connection for a back disability, including osteoarthritis; bilateral hand disability, including osteoarthritis; bilateral hip disability, including osteoarthritis; and bilateral knee disability, including total knee replacement and osteoarthritis are remanded. The Veteran has asserted that these disabilities are due to carrying heavy gear while on combat operations in Vietnam. Current private treatments records show findings of joint pain, osteoarthrosis and osteoarthritis. The Veteran has not been afforded a VA examination with respect to these disabilities. Importantly, when a Veteran was engaged in combat with the enemy, as did the Veteran in this appeal, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304 (d). The Veteran has also asserted that these disabilities are related to his in-service malaria. Thus, given the above, the Veteran should be afforded a VA examination with medical opinion with respect to these disabilities. In the alternative, he has also asserted that these disabilities are due to exposure to herbicide agents and/or contaminated water at Camp Lejeune. Although none of these disabilities are presumptively due to exposure to herbicide agents and contaminated water at Camp Lejeune under VA regulations, the Veteran is not precluded from showing that his disabilities are directly related to such exposure. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, a September 2019 private treatment record noted that the Veteran was seen for worsening, diffuse joint pain and muscle pain. The examiner opined that it is just as likely as is not that the Veteran's unfortunate exposure to volatile organic compounds TCE and PCE as well as Agent Orange have caused the extent of osteoarthritis and chronic joint pain. However, the private examiner failed to provide a rationale for this opinion and thus, it is inadequate to be the basis for an award of service connection. Nevertheless, in light of this opinion, on remand, the VA examiner should also address these contentions in their opinion. Entitlement to service connection for a disability manifested by numbness, tingling and weakness throughout body, claimed as due to exposure to contaminated water at Camp Lejeune, is remanded. The Veteran asserts that he experiences numbness, tingling and weakness throughout his body that he attributes to exposure to contaminated water at Camp Lejeune. As noted above, private treatment records do document reports of muscle and joint pain. Such records also show decreased sensation and strength in the lower extremities. Given the contentions and private treatment records, a VA examination with opinion is also necessary to address this issue. Entitlement to service connection for a sinus disability, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune, are remanded. The Veteran again asserts that he has a sinus disability due to exposure to herbicide agents and/or contaminated water at Camp Lejeune. The Veteran also testified that his disability was due to terrible air quality in Vietnam as well as burn pits where diesel fuel was used to burn waste. Again, as the Veteran served in combat, his statements are sufficient proof of service incurrence. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304 (d). In support of his claim for service connection for a sinus disability, the Veteran submitted an October 2016 private opinion, which found that it was at least as likely as not that the Veteran's chronic nasal symptoms were due to such exposure. The examiner rationalized that Agent Orange exposure carries a well-established relationship with increased risk of upper away malignances, and volatile organic compounds are known to cause upper airway irritation and damage. However, the Board finds that the examiner's rationale is inadequate as he indicated a relationship between Agent Orange and upper airway malignancies, but then admitted that the Veteran has not been diagnosed with a malignancy. Further, the examiner provided no further explanation concerning how contaminated drinking water caused the Veteran's current sinus disability. Thus, this opinion is insufficient to be the basis for the award of service connection. However, in light of the above, the Board finds that a VA examination with opinion is necessary. Entitlement to service connection for prostate disability and colon polyps, both to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune, are remanded. The Veteran also asserts that these disabilities are due to exposure to herbicide agents and/or contaminated water at Camp Lejeune. Private treatment records show findings of benign prostatic hyperplasia and colon polyps. Again, although these disabilities are not presumed to be due to such exposure under VA regulations, direct service connection may still be established. In light of the Veteran's contentions, he should be afforded appropriate VA examinations to address the etiology if these disabilities. Entitlement to service connection for borderline diabetes, also diagnosed as impaired fasting glucose, to include as due to exposure to herbicide agents, is remanded. The Veteran has asserted that he has borderline diabetes mellitus, type II, due to his in-service exposure to herbicide agents. The March 2017 VA examination indicated that there was no official diagnosis of diabetes mellitus, type II, but the Veteran has been diagnosed with hyperglycemia, borderline diabetes. The examiner did not offer an etiological opinion with rationale as to whether this finding was related to inservice exposure to herbicide agents. Subsequent private treatment records show a finding of impaired fasting glucose. In this case, the medical evidence does not show a diagnosis of diabetes mellitus, type II, which is presumed due to exposure to herbicide agents. Further, impaired fasting glucose is usually considered a laboratory finding and not a disability for which VA compensation benefits are payable. See generally 61 Fed. Reg. 20440 (May 7, 1996) (stating, regarding hyperlipidemia, elevated triglycerides, and elevated cholesterol, that such are "laboratory test results, and are not, in and of themselves, disabilities"). However, here, there is evidence that the Veteran's impaired fasting glucose reaches the level of functional impairment of earning capacity to qualify as a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this regard, the Veteran testified that he has to take medications for this condition. As such, an examination with opinion is necessary to determine whether the Veteran's borderline diabetes, also diagnosed as impaired fasting glucose is related to service, to include exposure to herbicide agents. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. The Veteran is also seeking service connection for hypertension. Service treatment record show that his blood pressure was slight elevated at 122/80 at his February 1971 discharge examination. Moreover, importantly, although VA has not conceded a relationship between hypertension and herbicides, it is significant to note that the National Academy of Science (NAS) Institute of Medicine Update 11 (2018) upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. The Veteran is also not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Considering the above, the Board finds that a VA examination opinion is necessary to address the etiology of the Veteran's hypertension. The matters are REMANDED for the following action: 1. Obtain additional VA clinical records dated from May 2017 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his left ear hearing loss and the nature and etiology of his right ear hearing loss. The claims file must be reviewed. The examiner should provide a full description of the Veteran's hearing loss disability and report all signs and symptoms necessary for evaluating the Veteran's hearing loss under the rating criteria. With respect to the Veteran's right ear hearing loss, the examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease, including in-service noise exposure. A detailed rationale must be provided. In proffering this opinion. The examiner must consider the Veteran's lay statements of pertinent symptomatology; the onset of the Veteran's left ear hearing loss as well as tinnitus in service; and address any threshold shift seen from December 1966 to February 1971 while in service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of malaria. The claims file must be reviewed. After examining the Veteran, the examiner should opine whether it at least as likely as not that the Veteran suffers from any residuals of malaria that began in service or are otherwise related to the in-service incident of malaria. A detailed rationale must be provided. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability, bilateral hand disability, bilateral hip disability and bilateral knee disability. The claims file must be reviewed. The examiner must clearly delineate all disabilities of the back, hands, hips and knees. The examiner must opine whether it is at least as likely as not that any diagnosed disabilities (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease are related to an in-service injury, event, or disease, including the in-service diagnosis of malaria; any injuries consistent with the circumstances, conditions or hardships of his combat service; and in-service exposure to herbicide agents and/or contaminated water at Camp Lejeune. The examiner must also opine whether any such disabilities are proximately due to or aggravated (any incremental increase regardless of permanence) by any residuals of malaria. A detailed rationale must be provided. In proffering the opinion, the examiner must consider the Veteran's lay statements and the September 2019 private opinion indicating a relationship between the Veteran's osteoarthritis and chronic joint pain to exposure to herbicide agents and contaminated water at Camp Lejeune. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a disability manifested by numbness, tingling and weakness throughout body. The claims file must be reviewed. The examiner must clearly delineate all diagnoses associated with this claim. With respect to each diagnosis, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to contaminated water at Camp Lejeune. A detailed rationale must be provided. The examiner must consider the Veteran's lay statements concerning the onset of his symptoms. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sinus disability. The claims file must be reviewed. With respect to any diagnosed sinus disability, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide agents and/or contaminated water at Camp Lejeune; or poor air quality as well as burn pits while serving in Vietnam. A detailed rationale must be provided. In proffering the opinion, the examiner must consider the Veteran's lay statements and the October 2016 private opinion indicating a relationship between the Veteran's sinus disability to exposure to herbicide agents and contaminated water at Camp Lejeune. 7. Schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the nature and etiology of his prostate disability and colon polyps. The claims file must be reviewed. With respect to each disability, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide agents and/or contaminated water at Camp Lejeune. A detailed rationale must be provided. The examiner must consider the Veteran's lay statements. 8. Schedule the Veteran for a VA examination for borderline diabetes mellitus, type II, also diagnosed as impaired fasting glucose. The claims file must be reviewed. The examiner must clearly determine whether the Veteran has a diagnosis of diabetes mellitus, type II. If a diagnosis of diabetes cannot be provided, given the documentation of functional impairment of earning capacity, the examiner should consider impaired fasting glucose a "disability" for the purpose of providing the requested opinion below. The examiner must opine whether it is at least as likely as not that the Veteran's impaired fasting glucose manifested during service, or is related to service, including exposure to herbicide agents. A detailed rationale must be provided. The examiner is advised that a negative opinion cannot be based solely on the fact that impaired fasting glucose is not on the list of diseases that are presumptively associated with exposure to herbicide agents. 9. Schedule the Veteran for a VA examination with an appropriate clinician for his hypertension. The claims file must be reviewed. The examiner must opine whether it is at least as likely as not that the hypertension (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to service, including exposure to herbicide agents. A detailed rationale must be provided. The examiner must address the slightly elevated blood pressure reading of 122/80 upon discharge. The examiner is advised that a negative opinion cannot be based solely on the fact that hypertension is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Moreover, the examiner should consider Update 11 (2018) from NAS Institute of Medicine that upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. Specifically, according to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.