Citation Nr: 21074202 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 20-02 279 DATE: December 14, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. Entitlement to service connection for an acquired psychiatric condition is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to November 1968. Evidence affiliated with the claims file also indicates that the Veteran served in the Reserve after November 1968 until November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) via a virtual hearing in November 2021; a transcript is of record. As a preliminary matter, the Board notes that the Veteran's November 1968 DD Form 214 indicates that, upon discharge from active duty service, the Veteran was transferred to the Reserve. The Veteran's service personnel records also reflect that he was discharged from the Reserve in November 1972. Though there are service treatment records and service personnel records associated with the claims file revealing the Veteran's education, performance, assignments, points, and awards, the precise dates of all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran's periods of active duty service, ACDUTRA, and INACDUTRA and obtain his Reserve medical records, if outstanding. Further, the Board acknowledges that the Veteran's VA medical records reflect that he has continuously sought medical treatment for his conditions through a private medical provider. See August 2006 VA Primary Care Outpatient Note. There are some private medical records affiliated with the claims file, however, these records are incomplete. See, e.g., Brookside Family Practice Records received in December 2018 and September 2019; January 2020 Letter from A.G., M.D. (received in February 2020). On remand, the Board requests that the Veteran's complete private medical records be obtained and associated with the claims file. 1. Bilateral Hearing Loss 2. Tinnitus Regarding the Veteran's claims for bilateral hearing loss and tinnitus, the Board notes that after evaluating the Veteran the September 2018 examiner opined that his hearing loss and tinnitus were less likely than not etiologically related to his military service. However, the examiner did not address a May 2018 VA Agent Orange Examination, in which the VA provider found that the Veteran was exposed to "quite a bit of very loud sounds, especially during the Tet Offensive, but at other times as well during his military career." See May 2018 VA Agent Orange Examination. Further, as the Veteran's private medical records indicating the onset and continuity of the Veteran's hearing loss and tinnitus symptomatology are not associated with the claims file, the Board finds that the examiner did not review all relevant, pertinent evidence of record, and therefore the September 2018 opinion is inadequate to decide these claims. Thus, the matter must be remanded for an addendum opinion regarding the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. 3. Bilateral Upper Extremity Peripheral Neuropathy 4. Bilateral Lower Extremity Peripheral Neuropathy The Veteran underwent an examination regarding his bilateral upper extremity and bilateral lower extremity peripheral neuropathies in September 2018. However, the examiner did not provide an opinion as to the etiology of the Veteran's conditions. Additionally, the Veteran asserts that his neuropathies are due to his now service-connected diabetes mellitus. In the Statement of the Case (SOC) the RO denied this claim because "peripheral neuropathy existed prior to [the Veteran's] service-connected diabetes." See December 2019 SOC. However, the RO did not address in its reasons and bases for denial the Veteran's May 2018 Agent Orange Examination, in which the VA clinician noted not only that the Veteran had been exposed to herbicide agents such as Agent Orange during his Vietnam service, but also that he had "early peripheral neuropathy" and "early diabetes." See May 2018 VA Agent Orange Examination. Thus, the Board requests on remand an addendum opinion determining the natures and etiologies of the Veteran's bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy. 5. Acquired Psychiatric Condition The Board acknowledges receipt of a September 2018 examination determining that the Veteran did not have a psychiatric diagnosis. However, a letter from the Veteran's private medical provider, in addition to other evidence submitted by the Veteran and his wife, reflect that he was, in fact, diagnosed with a psychiatric condition for which he was prescribed medication. Because the Veteran's private medical records were not affiliated with the claims file at the time of examination, the September 2018 examiner did not consider and address all relevant, pertinent medical evidence concerning the Veteran's acquired psychiatric disability and is therefore the September 2018 opinion is inadequate. As such, the Veteran's private medical records must be obtained and affiliated with the claims file to clarify as to any and all psychiatric condition(s) attributable to the Veteran throughout the period on appeal and a new opinion should be provided as to the nature and etiology of said condition(s). The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on active duty service, ACDUTRA, and/or INACDUTRA. In this regard a report detailing the Veteran's award of Reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA, must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. Any and all outstanding medical treatment records associated with the Veteran's Reserve service should also be obtained and affiliated with the claims file. 2. The RO should request the Veteran to identify any and all outstanding VA and/or private medical records regarding his bilateral hearing loss, tinnitus, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, and acquired psychiatric condition(s). Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any private medical records). He should also be invited to submit these records himself. All actions to obtain the requested records should be documented in the claims file. If they cannot be located or not such records exist, the Veteran and his representative should be so notified in writing. 3. After completing the foregoing development, forward the claims file to an appropriate clinician to determine the natures and etiologies of the Veteran's bilateral hearing loss and tinnitus. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's bilateral hearing loss manifested during, or is the result of, noise exposure during his active duty service, ACDUTRA, and/or INACDUTRA. (b) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's tinnitus manifested during, or is the result of, noise exposure during his active duty service, ACDUTRA, and/or INACDUTRA. (c) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's tinnitus was either (i) caused or (ii) aggravated by his bilateral hearing loss. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require "permanent worsening" of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of disability prior to such aggravation. In formulating his or her opinions, the clinician must consider and address the relevant lay and medical evidence of record, including, but not limited to: (i) The Veteran's service medical records; (ii) The Veteran's post-service VA and private medical records; (iii) The May 2018 VA Agent Orange Examination; and (iv) The Veteran's competent lay statements, including but not limited to his October 2018 VA Form 21-4138, December 2018 Notice of Disagreement and Correspondence, and November 2021 hearing testimony, regarding his first-hand in-service experiences and the onset and continuity of his symptomatology. If the clinician determines that the Veteran's bilateral hearing loss and/or tinnitus is/are less likely than not due to noise exposure from active duty service, ACDUTRA, and/or INACDUTRA, and/or that the Veteran's tinnitus is less likely than not caused and/or aggravated by his bilateral hearing loss, the clinician should discuss what other factor(s) caused the disorders. In other words, the clinician should ascertain the most likely etiologies of the Veteran's bilateral hearing loss and tinnitus. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran's bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's bilateral upper extremity peripheral neuropathy and/or bilateral lower extremity peripheral neuropathy manifested during, or is/are the result of, his active duty service, ACDUTRA, and/or INACDUTRA, to include as due to exposure to herbicide agents. (b) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's bilateral upper extremity peripheral neuropathy and/or bilateral lower extremity peripheral neuropathy was/were either (i) caused or (ii) aggravated by his service-connected diabetes mellitus. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require "permanent worsening" of the nonservice-connected condition. If aggravation is found, the clinician should attempt to identify the baseline level of disability prior to such aggravation. In formulating his or her opinions, the clinician must consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's post-service VA and private medical records; (iii) The May 2018 VA Agent Orange Examination; and (iv) The Veteran's competent lay statements, including but not limited to his October 2018 VA Form 21-4138, December 2018 Notice of Disagreement and Correspondence, and November 2021 hearing testimony, regarding his first-hand in-service experiences and the onset and continuity of his symptomatology. If the clinician determines that the Veteran's bilateral upper extremity peripheral neuropathy and/or bilateral lower extremity peripheral neuropathy is/are less likely than not due to his active duty service, ACDUTRA, and/or INACDUTRA, and/or is/are less likely than not caused and/or aggravated by his service-connected diabetes mellitus, the clinician should discuss what other factor(s) caused the disorders. In other words, the clinician should ascertain the most likely etiologies of the Veteran's bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 5. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran's acquired psychiatric disorder. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all psychiatric condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's condition manifested during, or is the result of, his active duty service and/or ACDUTRA. (c) If a diagnosis of PTSD is deemed appropriate, the clinician should clearly explain how the diagnostic criteria are met and comment upon the link between the Veteran's condition and claimed stressor(s). In formulating his or her opinion(s), the clinician must consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's post-service VA and private medical records; (iii) The Veteran's competent lay statements, including but not limited to his October 2018 VA Form 21-4138, December 2018 Notice of Disagreement and Correspondence, and November 2021 hearing testimony, regarding his first-hand in-service experiences and the onset and continuity of his symptomatology; (iv) The Veteran's wife's February 2020 lay statement regarding the Veteran's observable symptomatology and experiences; and (v) The Veteran's doctor's January 2020 letter explaining the Veteran's diagnosis and treatment. If the clinician determines that the Veteran's acquired psychiatric condition(s) is/are less likely than not due to his active duty service, ACDUTRA, and/or INACDUTRA, the clinician should discuss what other factor(s) caused the disorder(s). In other words, the clinician should determine the most likely etiology of the Veteran's acquired psychiatric condition(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 6. Thereafter, the RO should readjudicate the issues of service connection for bilateral hearing loss, tinnitus, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, and an acquired psychiatric disability. 7. If any of the above-sought benefits remain denied, the RO should issue a Supplemental Statement of the Case (SSOC) to the Veteran and his representative. An appropriate period of time should be allowed for response before returning this appeal to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.