Citation Nr: 21072977 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-00 788 DATE: December 7, 2021 ORDER New and material evidence having been received, the claim for service connection claim for hypertension is reopened. New and material evidence having been received, the claim for service connection claim for hepatitic C is reopened. REMANDED Entitlement to service connection for hypertension, claimed as the result of herbicide agent exposure, is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a recurrent sleep disability, to include sleep apnea, is remanded. Entitlement to service connection for a respiratory disability, to include allergic rhinitis, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 50 percent effective for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 20 percent for Type II diabetes mellitus with erectile dysfunction is remanded. Entitlement to a rating in excess of 10 percent prior to May 4, 2015, and in excess of 20 percent on and after May 4, 2015, for right upper extremity diabetic peripheral neuropathy is remanded. Entitlement to a compensable rating for a right forearm burn scar is remanded. Entitlement to an initial compensable rating for onychomycosis of the first toenails is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A December 2003 rating decision denied service connection for hypertension. The Veteran did not submit a timely notice of disagreement and the December 2003 rating decision is final. 2. The additional evidence received since the December 2003 rating decision is new and material. 3. A December 2003 rating decision denied service connection for hepatitis C. The Veteran did not submit a timely notice of disagreement and the December 2003 rating decision is final. 4. The additional evidence received since the December 2003 rating decision is new and material. CONCLUSIONS OF LAW 1. The December 2003 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for hypertension has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The December 2003 rating decision that denied service connection for hepatitis C is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence to reopen the claim for service connection for hepatitis C has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1967 to July 1969. He served in the Republic of Vietnam and received the Combat Infantryman Badge. In January 2019, the Veteran submitted a claim for a TDIU. When entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Therefore, the issue of entitlement to a TDIU is on appeal and will be addressed below. Applications to Reopen Service Connection Generally, absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In regards to pending legacy claims not under the modernized review system, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans' Appeals (Board) without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Hypertension A December 2003 rating decision denied service connection for hypertension as "service medical records do not show any record of your being treated for this condition during military service and there is no medical evidence that shows your hypertension existed at a compensable level within one year following your separation from military service or that your hypertension is related to your Type II diabetes mellitus." The Veteran was informed in writing of the adverse decision and his appellate rights. The service treatment records do not refer to hypertension. An April 2003 treatment record from G. Graves, M.D., states that the Veteran was diagnosed with hypertension. In his July 2003 Veteran's Application for Compensation or Pension, VA Form 21 526, the Veteran asserted that service connection for hypertension was warranted secondary to his presumed herbicide agent exposure in the Republic of Vietnam. The additional evidence received since the December 2003 rating decision includes VA examination and treatment records, private clinical documentation, the transcript of the April 2015 Decision Review Officer (DRO) hearing, and written statements from the Veteran. At the hearing on appeal, the Veteran testified that the diagnosed hypertension may be related to the service connected PTSD as the psychiatric disability caused his "blood pressure to spike." The Board finds the April 2015 hearing transcript to be of such significance that it raises a reasonable possibility of substantiating the claim for service connection for hypertension when considered with the evidence previously of record. The documentation addresses the reason of the previous denial as it shows that the Veteran hypertension may be aggravated by the service connected PTSD. As new and material evidence has been received, the claim of entitlement to service connection for hypertension is reopened. The issue of entitlement to service connection for hypertension will be addressed below in the Remand portion of this decision below. Hepatitis C A December 2003 rating decision denied service connection for hepatitis C as "service medical records do not show any record of your being treated for this condition during your military service, and there is no medical evidence of any risk factors during your military service that would have resulted in your claimed hepatitis C, other than your reported sexual activity and use of drugs." The Veteran was informed in writing of the adverse decision and his appellate rights. The service treatment records do not refer to hepatitis C. Clinical documentation from Dr. Graves, M.D., dated in December 1998 states that the Veteran was diagnosed with hepatitis C. In his July 2003 Veteran's Application for Compensation or Pension, VA Form 21 526, the Veteran asserted that service connection for hepatitis C was warranted secondary to his in service sexual activity. The additional evidence received since the December 2003 rating decision includes VA examination and treatment records, private clinical documentation, the transcript of the April 2015 DRO hearing, and written statements from the Veteran. At the hearing on appeal, the Veteran testified that the diagnosed hepatitis C was caused by his drug user which was a form of self medication for the service connected PTSD. The Board finds the April 2015 hearing transcript to be of such significance that it raises a reasonable possibility of substantiating the claim for service connection for hepatitis C when considered with the evidence previously of record. The documentation addresses the reason of the previous denial as it shows that the hepatitis C may be related to the service connected PTSD and related self medication. As new and material evidence has been received, the claim of entitlement to service connection for hypertension is reopened. The issue of entitlement to service connection for hypertension will be addressed below in the Remand portion of this decision below. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, claimed as the result of herbicide agent exposure, is remanded. The claim for service connection for hypertension has been reopened. However, the Board finds that further development is needed before the claim can be adjudicated. The Veteran asserts that service connection for hypertension is warranted as the claimed disability was incurred as the result of his presumed herbicide agent exposure and/or the Type II diabetes mellitus and PTSD. Service connection may also be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for PTSD, Type II diabetes mellitus with erectile dysfunction, right upper extremity diabetic peripheral neuropathy, left upper extremity diabetic peripheral neuropathy, right lower extremity diabetic peripheral neuropathy, left lower extremity diabetic peripheral neuropathy, right forearm burn scar, tinnitus, onychomycosis of the first toes. The Veteran has not been afforded a VA examination which addressed the relationship between the diagnosed hypertension and the service connected disabilities other than Type II diabetes mellitus. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). 2. Entitlement to service connection for hepatitis C is remanded The claim for service connection for hepatitis C has been reopened. However, the Board finds that further development is needed before the claim can be adjudicated. The Veteran contends that service connection for hepatitis C is warranted as the claimed disability was incurred as the result of the service connected PTSD and associated drug use used as a form of self medication. The report of a May 2018 VA hepatitis examination states that "the hepatitis C is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's drug use" and "the relationship of his drug use to his PTSD is beyond the purview of my medical specialty and I cannot offer an opinion on a causative relationship." The Veteran has not been afforded a VA examination which addresses the relationship between the diagnosed hepatitis C and PTSD and the claimed self medication/drug use. 3. Entitlement to service connection for a recurrent sleep disability, to include sleep apnea and insomnia, is remanded. The Veteran asserts that service connection for a recurrent sleep disability is warranted as sleep apnea was initially manifested during active service and/or recurrent insomnia was incurred secondary to the service connected PTSD. The report of a May 2018 sleep apnea examination conducted for VA conveys that "the Veteran's sleep symptoms do not represent a physical medical disorder" and "I cannot comment on the relationship of his sleep symptoms to his PTSD as it is beyond the purview of my medical specialty." The Veteran has not been afforded a VA examination which addresses the relationship between the reported impaired sleep and the service connected PTSD. 4. Entitlement to service connection for a respiratory disability, to include allergic rhinitis, is remanded. The Veteran contends that service connection for a respiratory disability is warranted as allergic rhinitis was manifested during active service and/or as a result of his presumed herbicide exposure in the Republic of Vietnam. The Veteran has not been afforded a VA respiratory examination. 5. Entitlement to service connection for bilateral hearing loss is remanded. The report of a June 2016 VA audiological examination states that the service treatment records document a "significant shift in hearing was noted during military service (hearing remains normal)." A February 2018 VA audiological treatment record notes that the Veteran was diagnosed with bilateral sensorineural hearing loss. The report of a February 2019 VA audiological examination conveys that "even though noise exposure is conceded due to the Veteran's MOS of infantryman, based on the Veteran's normal hearing at separation in 1969 and normal hearing on the post-separation audiogram in 2013, it is less likely than not that the Veteran's hearing loss is the result of military noise exposure." The examiner did not address the documented in service "significant shift in hearing" and diagnosed bilateral sensorineural hearing loss. Given such deficiency, the Board finds that the examination report is of limited probative value. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that further VA audiological evaluation is needed. 6. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. The Veteran contends that an initial rating in excess of 50 percent is warranted for PTSD. The Veteran was last afforded a VA psychiatric examination in May 2015. Given the nature of the service connected psychiatric disability and the passage of over six years since the last examination, the Board finds that further VA evaluation is needed. 7. Entitlement to a rating in excess of 20 percent for Type II diabetes mellitus with erectile dysfunction and a rating in excess of 10 percent prior to May 4, 2015, and in excess of 20 percent on and after May 4, 2015, for right upper extremity peripheral neuropathy is remanded. Clinical documentation dated after February 2019 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 8. Entitlement to both a compensable rating for a right forearm burn scar and an initial compensable rating for onychomycosis of the first toenails is remanded. The Veteran was last afforded a VA examination which addressed the service connected right forearm burn scar and onychomycosis of the first toenails in May 2015. Given the nature of the service connected disabilities and the passage of over six years since the last examination, the Board finds that further VA evaluation is needed. 9. Entitlement to a TDIU is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. The claim is inextricably intertwined with other issue being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for any hypertension, hepatitis, recurrent sleep, respiratory, and bilateral hearing loss disabilities and the service connected PTSD, Type II diabetes mellitus, erectile dysfunction, right lower extremity diabetic peripheral neuropathy, right forearm burn scar, and onychomycosis. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include any pertaining to treatment after February 2019. 3. Schedule the Veteran for a VA hypertension examination conducted by a medical doctor to assist in determining the nature and etiology of any hypertension disability and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all hypertensive disabilities found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hypertension had its onset during active service or is related to any incident of service, including the Veteran's presumed herbicide agent exposure in the Republic of Vietnam. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any hypertension is due to or the result of the Type II diabetes mellitus, PTSD, and the other service connected disabilities. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified gastrointestinal disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the Type II diabetes mellitus, PTSD, and the other service connected disabilities. 4. Schedule the Veteran for a VA hepatitis C examination conducted by a medical doctor to assist in determining the nature and etiology of the diagnosed hepatitis C and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Opine whether it is at least as likely as not (50 percent probability or greater) that any the diagnosed hepatitis C had its onset during active service or is related to any incident of service, including the Veteran's service in the Republic of Vietnam. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed hepatitis C is due to or the result of the PTSD, the claimed associated drug use, and the other service connected disabilities. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed hepatitis C has been aggravated (increased in severity beyond the natural progress of the PTSD, the claimed associated drug use, and the other service connected disabilities. 5. Schedule the Veteran for a VA respiratory examination conducted by a medical doctor to assist in determining the nature and etiology of any respiratory disability and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all respiratory disabilities found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified respiratory disability had its onset during active service or is related to any incident of service, including the Veteran's presumed herbicide agent exposure in the Republic of Vietnam. 6. Schedule the Veteran for a VA audiological examination to assist in determining the nature and etiology of any bilateral hearing loss and any relationship to active service. The examiner must review the record, including the June 2016 examination report and the February 2018 treatment record, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all bilateral hearing loss disability found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hearing loss disability had its onset during active service or is related to any incident of service, including the Veteran's combat experiences in the Republic of Vietnam. The examiner should specifically address the June 2016 examination report and the February 2018 treatment record. 7. Schedule the Veteran for a VA psychiatric examination to ascertain the current severity of the service connected PTSD. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Opine whether the Veteran's reported drug use/self medication was associated with the service connected PTSD. (b) Opine as to the levels of occupational and social impairment caused by the service-connected PTSD and should describe the frequency and severity of symptoms resulting in those levels of impairment. (c) Opine as to the impact of PTSD on the Veteran's vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined impact of the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. 8. Schedule the Veteran for a VA examination to assist in determining the current nature and severity of the service-connected right forearm burn scar and onychomycosis of the first toenails. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.