Citation Nr: 21073924 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 19-20 816 DATE: December 13, 2021 ORDER Entitlement to service connection for a skin lesion has been withdrawn. Entitlement to service connection for macrocytic anemia has been withdrawn. Entitlement to service connection for a heart murmur has been withdrawn. Entitlement to an increased rating for diabetes mellitus type II (DM II) in excess of 20 percent prior to July 22, 2021 and in excess of 40 percent thereafter has been withdrawn. New and material evidence having been received, the petition to reopen the claim of service connection for hypertension is granted. New and material evidence having been received, the petition to reopen the claim of service connection for bilateral hearing loss is granted. New and material evidence having been received, the petition to reopen the claim of service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for hypothyroidism, to include as due to exposure to herbicide agents is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for prostatic hypertrophy is remanded. Entitlement to service connection for bilateral hydronephrosis is remanded. Entitlement to service connection for renal failure is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. At the September 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his substantive appeal with respect to the issues of entitlement to service connection for a skin lesion, macrocytic anemia, heart murmur and increased rating for DM II. 2. In a November 2011 rating decision, a VA regional office (RO) denied service connection for the Veteran's hypertension, hearing loss and tinnitus. Although notified of the denial in a December 2011 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year. 3. Evidence associated with the file since November 2011, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claims of entitlement to service connection hypertension, bilateral hearing loss and tinnitus. 4. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to his military service. 5. The Veteran is presumed to have been exposed to herbicide agents during his active service, and his hypothyroidism is presumed to be related to such exposure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issues of service connection for a skin lesion, macrocytic anemia, heart murmur, and increased rating for DM II, by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The November 2011 rating decision denying service connection for hypertension, bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 20.302 (a), 20.1103. 3. As pertinent evidence received since the November 2011 denial is new and material, the criteria for reopening the claims of service connection for hypertension, bilateral hearing loss and tinnitus are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for hypothyroidism, to include as due to exposure to herbicide agents are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309 (e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Air Force from June 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). In September 2021, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge. The hearing transcript is in the record. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Dismissed Claims 1. Entitlement to service connection for: for a skin lesion, macrocytic anemia, heart murmur, and increased rating for DM II. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran withdrew his appeal of the issues of service connection for a skin lesion, macrocytic anemia, heart murmur, and increased rating for DM II at the September 2021 Board hearing. The Veteran testified that he knew and understood the consequences of withdrawing these claims and insisted the claims be withdrawn. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues, and they are dismissed. New and Material Evidence Generally, a claim that has been denied in an un-appealed Board decision or an un-appealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). 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. 38 C.F.R. § 3.156 (a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). 2. Whether new and material evidence has been received to reopen the claims of service connection for hypertension, bilateral hearing loss and tinnitus. The claims of service connection for a hypertension, bilateral hearing loss and tinnitus were denied in an un-appealed November 2011 rating decision. Because new and material evidence has since been submitted, the claims will be reopened. In November 2011, the RO denied the Veteran's claims because there was no evidence that the claimed disabilities were caused or aggravated by service. Although notified of this decision by a December 2011 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In March 2017, the Veteran filed to reopen his claims of service connection. Evidence submitted since the final 2011 rating decision consists of a VA and private treatment records, statements from the Veteran and articles on hypertension and hearing loss. The record includes evidence of a possible association of the Veteran's disabilities to service or a service-connected disability. Given the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the 2011 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims for service connection and raises a reasonable possibility of substantiating the claims. Thus, the claims of entitlement to service connection for hypertension, bilateral hearing loss and tinnitus are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain diseases may be granted based on presumed exposure to certain herbicide agents (including the dioxin in Agent Orange), even though there is no record of such disease during service. See 38 C.F.R. § 3.309 (e). Presumed exposure to an herbicide applies to a Veteran who had active military, naval, or air service for at least 90 days during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309 (e), 3.313. During the pendency of the appeal, the National Defense Authorization Act for Fiscal Year 2021 (NDAA) went into effect on January 1, 2021. Pub. L. No. 116-283. The NDAA amended 38 U.S.C. § 1116 (a)(2) to include, in pertinent part, hypothyroidism among the list of diseases eligible for presumptive service connection based on herbicide agent exposure for veterans who served in the Republic of Vietnam during the Vietnam Era. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for tinnitus. The Veteran seeks service connection for tinnitus. Specifically, he contends that his tinnitus had its onset during his military service as a result of noise exposure and has been recurrent since such time. The Board finds that the Veteran has a current diagnosis of tinnitus as such disorder can be identified through lay observations alone and he has offered competent and credible descriptions of experiencing tinnitus throughout the pendency of his claim. See Charles v. Principi, 16 Vet. App. 370 (2002). Such diagnosis was also confirmed at a January 2006 VA examination. Furthermore, while the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis referable to tinnitus, his reports of exposure to noise during his military service are consistent with his military occupational specialty (MOS) of administrative specialist. Therefore, the Board finds his reports of in-service noise exposure to be competent and credible. Consequently, the remaining inquiry is whether the Veteran's tinnitus is related to his exposure to noise during service. In this regard, the January 2006 VA examiner opined that the Veteran's tinnitus was not caused by or a result of military noise exposure. In support thereof, the examiner noted that the Veteran reported its onset in 1993 many years after service separation. Thus, the examiner concluded that his tinnitus was not due to noise exposure during service. The Veteran testified at the September 2021 Board hearing, that he began experiencing ringing in his ears after being exposed to loud explosions, gunfire, helicopters flying overhead and B-52 bombers landing on the airstrip near the building where he worked on a daily basis for two years. Additionally, a November 2005 medical opinion, provided by the Veteran's private physician, noted the Veteran was exposed to noise during service and his tinnitus was related to such exposure. In this regard, when a claim involves a diagnosis based purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Charles, supra. Therefore, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed tinnitus had its onset during his active-duty service. Consequently, service connection for tinnitus is warranted. 4. Entitlement to service connection for hypothyroidism, to include as due to exposure to herbicide agents Here, the agency of original jurisdiction (AOJ) has verified the Veteran's service in the Republic of Vietnam and conceded the Veteran's exposure to herbicide agents during service. In a July 2019 VA Form 9, the Veteran contended that his hypothyroidism was due to his Agent Orange exposure. As noted above, the NDAA for Fiscal Year 2021 added three diseases to the list of presumptive diseases outlined in 38 C.F.R. § 3.309 (e), including hypothyroidism, the addition of which will be codified at 38 U.S.C. § 1116 (a)(2)(J). The Veteran has a diagnosis of hypothyroidism. Accordingly, as the Veteran has a diagnosis of hypothyroidism, and is entitled to the presumptions based on herbicide agent exposure due to qualifying service in Vietnam, service connection for hypothyroidism as due to in-service herbicide agent exposure is granted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. Here, the Veteran was afforded a VA examination with respect to this claim in November 2005 and November 2010. The examiners indicated that the Veteran had a history of hypertension for the same amount of time as his history of DM II. The examiners opined that in the absence of kidney disease, hypertension is neither caused or, aggravated by his service-connected DM II. The Board finds these opinions inadequate as the examiners noted the claims file was not available for review and a sufficient rationale was not provided for either opinion. Additionally, the Veteran has provided an article on the possible association between DM II and hypertension that has not been considered. Moreover, the Veteran has asserted that his hypertension is also the result of his conceded exposure to herbicide agents or in the alternative related to the extreme pressure he was under during service. The record does not contain a medical opinion addressing the Veteran's hypertension on a direct basis. Thus, remand is required to obtain an adequate medical opinion on the nature and etiology of the Veteran's hypertension. 2. Entitlement to service connection for prostatic hypertrophy is remanded. 3. Entitlement to service connection for bilateral hydronephrosis is remanded. 4. Entitlement to service connection for renal failure is remanded. Here, the Veteran has not been afforded a VA examination with respect to these claims. The record contains the Veteran has been diagnosed with prostatic hypertrophy, bilateral hydronephrosis and renal failure. The Veteran has also asserted that these disabilities could be related to his conceded herbicide agent exposure. Therefore, the Board finds a VA examination is warranted. Additionally, on remand efforts must be made to obtain legible copies of the Veteran's private treatment records submitted in March 2017 from M.F.P. and U.C. and P.S. as part of the records are illegible. 5. Entitlement to service connection for bilateral hearing loss is remanded. Here, the Veteran was afforded a VA examination in January 2006. The examiner opined that because the Veteran had normal findings on hearing examinations conducted at service entrance and separation his hearing loss was not caused by or the result of noise exposure during service. The Board finds this opinion inadequate as the examiner based the opinion on the absence of evidence, failed to consider the Veteran's assertions as to onset of hearing loss and did not provide sufficient rationale for the opinion reached. Additionally, the Veteran submitted an article on hearing loss that has not be considered. Moreover, as this decision has granted service connection for tinnitus, an opinion on secondary service connection is required. Based on the foregoing, a remand is required to obtain an adequate medical opinion on the nature and etiology of the Veteran's bilateral hearing loss. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for M.F.P. and U.C., P.S. and any other relevant private physician. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for hypertension, prostatic hypertrophy, bilateral hydronephrosis, renal failure, and bilateral hearing loss. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is the Veteran's hypertension, prostatic hypertrophy, bilateral hydronephrosis and renal failure at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the disabilities are not on the list of diseases that are presumptively associated with exposure to herbicide agents. (b.) Is the Veteran's hypertension, prostatic hypertrophy, bilateral hydronephrosis and renal failure at least as likely as not proximately due to service-connected DM II or social anxiety disorder? (c.) Is the Veteran's hypertension, prostatic hypertrophy, bilateral hydronephrosis and renal failure at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected DM II or social anxiety disorder? (d.) Is the Veteran's bilateral hearing loss at least as likely as not related to in-service noise exposure or caused or aggravated by service-connected tinnitus? Provide a rationale to support the opinions. The examiner must consider the articles on the relationship between DM II and hypertension and noise induced hearing loss. In providing the requested opinion, the examiner must also consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. After completing the requested actions, and any additional actions deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.