Citation Nr: 21076564 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 07-09 088 DATE: December 27, 2021 REMANDED Entitlement to service connection for bilateral hearing loss, to include as due to herbicide exposure, is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for asthma, to include as due to herbicide exposure, is remanded. Entitlement to service connection for lumbar spine condition, to include as due to herbicide exposure, is remanded. Entitlement to service connection for skin condition, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1971 to April 1973, as well as periods with the U.S. Army Reserves. In a December 2018 decision, the Board of Veterans' Appeals (Board), in pertinent part, denied service connection for bilateral hearing loss and tinnitus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Memorandum Decision, the Court vacated the Board's decision pertaining to the bilateral hearing loss and tinnitus issues and remanded the claims to the Board for readjudication consistent with the Court's instruction. In the same December 2018 decision, the Board also remanded the issues of entitlement to service connection for hypertension, asthma, back, and skin conditions for further development. Specifically, the Board instructed the regional office (RO) to obtain medical opinions pertaining to the Veteran's claims. In an October 2021 rating decision, the RO granted entitlement to service connection for hypertension with a 10 percent rating, effective September 16, 2009. This constituted a full grant of the benefits sought. Accordingly, the Board does not have jurisdiction over this issue, and it are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). Upon review of the record, the Board finds that the claims must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 1. Entitlement to service connection for bilateral hearing loss, to include as due to herbicide exposure, is remanded. 2. Entitlement to service connection for tinnitus, to include as due to herbicide exposure, is remanded. The Veteran contends that his bilateral hearing loss and tinnitus is related to herbicide exposure during his active service and arose during his service in the Reserve. First, a remand is necessary as the evidence indicates that there may be relevant service treatment records (STRs) not associated with the Veteran's claims file. Specifically, the Veteran contends that he was in the U.S. Army Reserves after his active duty service until 1996 or 1997, but his STRs do no cover this entire period in the Reserve. See November 2009 Military Personnel Record. As there is a possibility that pertinent STRs exist and are not associated with the file, a remand is necessary to afford the Agency of Original Jurisdiction (AOJ) an opportunity to obtain and associate these records with the claims file. Second, the Board finds that a new VA examination and etiological opinions are warranted for the Veteran's claims. The Veteran underwent a VA examination in February 2017. The examiner provided a negative opinion for the Veteran's bilateral hearing loss and but did not provide an opinion for the Veteran's tinnitus. As discussed above, pertinent STRs may be missing so the February 2017 examination and opinion are inadequate as the examiner was unable to consider the Veteran's prior medical history. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the examiner did not address the Veteran's contention that his bilateral hearing loss and tinnitus are the result of conceded herbicide exposure. Accordingly, a remand is warranted. 3. Entitlement to service connection for asthma, to include as due to herbicide exposure, is remanded. 4. Entitlement to service connection for lumbar spine condition, to include as due to herbicide exposure, is remanded. 5. Entitlement to service connection for skin condition, to include as due to herbicide exposure, is remanded. The Board finds that an addendum opinion is warranted for the Veteran's claimed asthma, back, and skin conditions. The Veteran appeared for VA examinations in July 2021 for his claimed disabilities in which the examiner noted found, for all three claimed conditions, that the Veteran's disabilities were note related to any aspect of the Veteran's active service, to include herbicide exposure. To this end, and for all three conditions, the examiner ostensibly based such opinions of a lack of finding of any asthma, back, or skin condition, for years/decades after the Veteran's active service. Additionally, the examiner noted that none of the claimed conditions were noted conditions associated with herbicide exposure. The Bord finds, however, that the VA opinions are inadequate. As discussed above, pertinent STRs of the Veteran's time in the Reserve may be missing, and the Veteran claims that he was diagnosed with asthma while in the Reserve. See February 2017 C&P Exam. Thus, as the July 2021 examiner was unable to review these missing records, the Board must find that such opinion is incomplete, as it may not be based on the full body of evidence constructively available to the VA. As such, remand is again necessary for addendum opinion to adequately address the nature and etiology of the Veteran's asthma, as necessary. Furthermore, as noted the Court, with regards to the Veteran's claim for hearing loss and tinnitus, evaluation regarding incurrence and injury during the Veteran's long period of reserve service is also necessary. Here, a close review of the VA opinions of record seem to ignore this period of reserve service from consideration; and thus rending such opinion incomplete; and as such, remand is required. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify any relevant medical records. Thereafter, with the Veteran's assistance as appropriate, obtain and associate with the Veteran's claims file the entirety of the Veteran's service treatment records and post-service treatment records, particularly records from his period of service in the Army Reserves. Make at least two (2) attempts at acquiring such full STRs records from this period of reserve service. All attempts to obtain these records pursuant to 38 C.F.R. § 3.159(c) must be documented. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his bilateral hearing loss and tinnitus. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's bilateral hearing loss and tinnitus had their onset in or are related to active and/or Reserve service, to include a presumed exposure to herbicide agents? In considering whether herbicide exposure caused the Veteran's bilateral hearing loss and tinnitus, please keep in mind that the mere fact that VA has not included a certain diagnosis on a list of presumptive conditions is not, in and of itself, a sufficient rationale for finding that the condition is not related to service. In other words, the Board needs opinions as to the likelihood that the Veteran's bilateral hearing loss and tinnitus, without regard to the conditions VA recognizes as being due to herbicide exposure, were nevertheless at least as likely as not related to his exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Only after completing remand directive number 1, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his asthma. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's asthma had its onset in or is related to active and/or Reserve service, to include a presumed exposure to herbicide agents? In considering whether herbicide exposure caused the Veteran's asthma, please keep in mind that the mere fact that VA has not included a certain diagnosis on a list of presumptive conditions is not, in and of itself, a sufficient rationale for finding that the condition is not related to service. In other words, the Board needs opinions as to the likelihood that the Veteran's asthma, without regard to the conditions VA recognizes as being due to herbicide exposure, were nevertheless at least as likely as not related to his exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Only after completely remand directive number 1, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his lumbar spine condition. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's lumbar spine condition had its onset in or is related to active and/or Reserve service, to include a presumed exposure to herbicide agents? In considering whether herbicide exposure caused the Veteran's lumbar spine condition, please keep in mind that the mere fact that VA has not included a certain diagnosis on a list of presumptive conditions is not, in and of itself, a sufficient rationale for finding that the condition is not related to service. In other words, the Board needs opinions as to the likelihood that the Veteran's lumbar spine condition, without regard to the conditions VA recognizes as being due to herbicide exposure, were nevertheless at least as likely as not related to his exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Thereafter, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his bilateral hearing loss and tinnitus. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's skin condition had its onset in or is related to active and/or Reserve service, to include a presumed exposure to herbicide agents? In considering whether herbicide exposure caused the Veteran's skin condition, please keep in mind that the mere fact that VA has not included a certain diagnosis on a list of presumptive conditions is not, in and of itself, a sufficient rationale for finding that the condition is not related to service. In other words, the Board needs opinions as to the likelihood that the Veteran's skin condition, without regard to the conditions VA recognizes as being due to herbicide exposure, were nevertheless at least as likely as not related to his exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, Associate 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.