Citation Nr: 21074360 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-51 137 DATE: December 15, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to service connection for hypothyroidism is granted. Entitlement to service connection for diabetes mellitus Type II is granted. REMANDED Entitlement to service connection for irritable colon syndrome, claimed as chronic constipation, to include as due to herbicide exposure, is remanded. Entitlement to service connection for skin rash, to include as due to herbicide exposure, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A September 2017 rating decision granted the Veteran service connection for PTSD. 2. The Veteran served in the Republic of Vietnam during the Vietnam War era and therefore is presumed to have been exposed to herbicide agents during service. 3. The Veteran has a current diagnosis of hypothyroidism. 4. The Veteran has a current diagnosis of diabetes mellitus type II. CONCLUSIONS OF LAW 1. As the benefit sought on appeal have been granted, there remains no question of law or fact pertaining to the claim of service connection for PTSD for the Board to consider; the appeal in this matter has been rendered moot and must be dismissed. 38U.S.C. §7105. 2. The criteria for service connection for hypothyroidism are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for diabetes mellitus type II are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1970. He served in the Republic of Vietnam from April 1968 to April 1969. His awards include the Vietnam Service Medal and Vietnam Campaign Medal. These matters come before the Board of Veterans' Appeals (Board) from September 2015 and October 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Seattle, Washington. 1. Entitlement to service connection for PTSD. A September 2017 rating decision granted the Veteran service connection for PTSD. Thus, the Veteran's appeal as to this matter has been rendered moot, as the benefit sought on appeal (service connection) has been granted. See generally Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (because appellant's first appeal concerned rejection of logically up-stream element of service connection, the appeal could not concern logically down-stream element of disability rating). There is no question of fact or law in the matter remaining for the Board to consider; accordingly, the appeal seeking service connection for PTSD must be dismissed as moot. 38 U.S.C. § 7105(d)(5). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service "in the Republic of Vietnam" includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A (a). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Moreover, the National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, amended 38 U.S.C. § 1116(a)(2) and added Parkinsonism, bladder cancer, and hypothyroidism as additional diseases which are presumed to be associated with exposure to herbicide agents (including Agent Orange). Although this law did not contain an effective date and has not yet been codified, in the absence of such guidance it must be presumed that the law became effective upon its January 1, 2021 enactment. See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) ("It is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment"). A veteran may also establish service connection based on exposure to Agent Orange with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is, a veteran may still establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting evidence of a nexus between the disease and his exposure to herbicides during military service. Combee, 34 F.3d at 1043-1044. 2. Entitlement to service connection for hypothyroidism. 3. Entitlement to service connection for diabetes mellitus Type II. The Board finds, for the following reasons, that the Veteran is presumed to have been exposed to herbicide agents (including Agent Orange) during service and he has current diagnoses of hypothyroidism and diabetes mellitus type II that are presumptively service-connected. Medical records, including a September 2021 VA primary care note, indicate that the Veteran experiences current hypothyroidism and diabetes mellitus which are treated with medication. Thus, current diagnoses of hypothyroidism and diabetes mellitus has been demonstrated. Moreover, as the Veteran served in Vietnam during the Vietnam War era, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). As he has current hypothyroidism and diabetes mellitus and is presumed exposed to herbicide agents in Vietnam, service connection for hypothyroidism and diabetes mellitus are warranted on a presumptive basis. REASONS FOR REMAND Unfortunately, the Board finds that further AOJ action on the remaining claims is warranted, even though such will, regrettably, further delay an appellate decision on this matter. 1. Entitlement to service connection for irritable colon syndrome, claimed as chronic constipation, to include as due to herbicide exposure, is remanded. The Veteran maintains that he suffered an in-service injury which caused his colon condition. He also asserts that his claimed colon condition is related to his conceded herbicide agent exposure. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has broadly construed the Veteran's claim as reflected on the title page of this document. The Veteran has stated that he had suffered an injury to his tailbone while serving in Vietnam, which caused his current claimed colon/bowel condition. He has also stated that he had bowel surgery in the 1980s and had residuals resulting in constipation, leakage, and other symptoms. VA treatment records indicate that the Veteran has been diagnosed with chronic constipation, colon polyps, irritable colon syndrome, and other gastrointestinal conditions. See VA treatment records. The Veteran has not been afforded a VA examination concerning this disability. As there is at least an indication that the Veteran's current colon condition may be related to his active-duty service, a VA examination and opinion must be provided to make an informed decision on this claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). Additionally, the Veteran's Certificate of Release or Discharge (DD-Form 214) indicates he served in the Republic of Vietnam and has met the requirements for presumptive herbicide agent exposure, to include Agent Orange, during his active service. 38 U.S.C. § 1116(f). Thus, while these colon conditions are not presumptively linked to herbicide agent exposure, the Veteran's claim must be evaluated on a direct basis. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 83. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. That threshold having been met, a VA examination and opinion must be provided to make an informed decision on the Veteran's claim for service connection for his claimed colon condition, to include as due to his claimed in-service injury and his conceded herbicide agent exposure. As there is at least an indication that the Veteran's colon and/or bowel disability may be related to his active-duty service, to include his conceded herbicide agent exposure, or to his service-connected disabilities, a VA examination and opinion must be provided to make an informed decision on this claim. See McLendon, 20 Vet. App. at 83; see also Colvin, 1 Vet. App. at 175. 2. Entitlement to service connection for skin rash, to include as due to herbicide exposure, is remanded. The Veteran maintains that his conceded herbicide agent exposure caused his skin condition. The Veteran stated that he had a history of blackheads, cysts, and nodules which required surgical treatment. See Veteran statement, dated October 2017. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has broadly construed the Veteran's claim as reflected on the title page of this document. VA treatment records indicate that the Veteran has been diagnosed with actinic keratosis, skin lesions and hypertrophic condition of the skin. See VA treatment records. To date, the Veteran has not been afforded a VA examination concerning this disability. As there is at least an indication that the Veteran's skin disability may be related to his active-duty service, to include his conceded herbicide agent exposure, or to his service-connected disabilities, a VA examination and opinion must be provided to make an informed decision on this claim. See McLendon, 20 Vet. App. at 83; see also Colvin, 1 Vet. App. at 175. 3. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. The Board notes that the Veteran's exposure to herbicides has been conceded. The National Academy of Sciences, Engineering, and Medicine (NAS) recently published updated information about the relationship between a person's exposure to Agent Orange and subsequent development of hypertension. It upgraded the relationship between hypertension and Agent Orange exposure from "limited or suggestive" to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine 2018, Veterans and Agent Orange: Update 11 (2018) at 10, 487-498. Review of the record reveals that the Veteran has not been provided with a VA examination to determine if his hypertension is etiologically linked to his in-service exposure to herbicides. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the veteran has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. VA treatment records show that the Veteran has a diagnosis of hypertension. Considering there is evidence of a current disability, conceded in-service exposure to herbicides, and the NAS findings suggesting an association between hypertension and herbicide exposure, remand is required to obtain medical opinions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran is seeking entitlement to service connection for bilateral hearing loss. In-service noise exposure is considered established. He underwent a VA hearing loss examination in September 2015. At that time, his right ear hearing loss did not meet the criteria for a disability pursuant to VA regulations. The VA examiner determined that the Veteran's left ear hearing loss did meet the criteria. However, the VA examiner opined that the Veteran's diagnosed hearing loss was less likely than not attributable to his military service. The Board finds the September 2015 VA examination inadequate to adjudicate the claim because the examiner's sole rationale for the negative opinion was that the Veteran had normal hearing at separation. However, service connection for hearing loss is not precluded where hearing was within normal limits on audiometric testing at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see also Fagan v. Shinseki, 573 F.3d 1282, 1284 (Fed. Cir. 2009) (quoting a VA examiner's statement that whisper tests do not provide frequency or ear specific information and therefore do not rule out, or confirm, high frequency hearing loss). Additionally, the Board finds that the VA examiner's conclusion is not supported by an adequate explanation (rationale). See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). For the foregoing reasons, a remand is warranted to afford the Veteran a new VA examination. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim . . . he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided."). The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Schedule the Veteran for the appropriate VA examinations by a VA medical professional with the necessary expertise to determine the nature and etiology of the claimed colon and/or bowel disability, to include as due to the Veteran's now service-connected diabetes and hypothyroidism, or any other service-connected disabilities, to include the medications used to treat those disabilities. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. For any diagnosed condition, the examiner should opine to the following: (a.) Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran's colon and/or bowel disability is related to his active-duty service, or are otherwise related to any in-service disease, event, or injury? (b.) If not, is it at least as likely as not (probability of fifty percent or greater) that any colon and/or bowel disability was caused by the Veteran's service-connected disabilities? (c.) If any service-connected disability did not cause the colon and/or bowel disability, is it at least as likely as not (probability of fifty percent or greater) that colon and/or bowel disability was aggravated (an increase in severity) by the service-connected disability/disabilities? (d.) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the colon and/or bowel disability by the service-connected disabilities. The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for an appropriate VA examination by a VA medical professional with the necessary expertise to determine the nature and etiology of the claimed skin disability, to include as due to the Veteran's now service-connected diabetes and hypothyroidism, or any other service-connected disabilities, to include the medications used to treat those disabilities. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. For any diagnosed condition, the examiner should opine to the following: (a.) Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran's skin disability is related to his active-duty service, or are otherwise related to any in-service disease, event, or injury? (b.) If not, is it at least as likely as not (probability of fifty percent or greater) that any skin disability was caused by the Veteran's service-connected disabilities? (c.) If any service-connected disability did not cause the skin disability, is it at least as likely as not (probability of fifty percent or greater) that skin disability was aggravated (an increase in severity) by the service-connected disability/disabilities? (d.) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the skin disability by the service-connected disabilities. The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for an appropriate VA examination by a VA medical professional with the necessary expertise to determine the nature and etiology of the claimed hypertension disability, to include as due to the Veteran's now service-connected diabetes and hypothyroidism, or any other service-connected disabilities, to include the medications used to treat those disabilities. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. The examiner should opine to the following: (a.) Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran's hypertension disability is related to his active-duty service, or are otherwise related to any in-service disease, event, or injury, to include his conceded exposure to herbicide agents? (b.) If not, is it at least as likely as not (probability of fifty percent or greater) that any hypertension disability was caused by the Veteran's service-connected disabilities? (c.) If any service-connected disability did not cause the hypertension disability, is it at least as likely as not (probability of fifty percent or greater) that hypertension disability was aggravated (an increase in severity) by the service-connected disability/disabilities? (d.) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the hypertension disability by the service-connected disabilities. Consideration should be given to the NAS discussion of hypertension as an effect of Agent Orange exposure in Veterans, cited above. The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. Schedule the Veteran for a VA audiological examination by a VA medical professional with the necessary expertise to determine the nature and etiology of the Veteran's bilateral hearing loss. The claims file and a copy of this remand must be made available to the examiner and the examiner should note in the examination report that the claims folder and the remand have been reviewed. The examiner should opine to the following: (a.) Does the Veteran have a current diagnosis of bilateral hearing loss for VA purposes? (b.) Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran's hearing loss disability is related to his active-duty service, or are otherwise related to any in-service disease, event, or injury, to include the Veteran's conceded noise exposure in-service. The Board reminds the examiner that the Veteran's noise exposure during service has been conceded, and normal audiometric results in a separation examination alone are not adequate basis for a negative opinion. The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.