Citation Nr: 21076863 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-22 766 DATE: December 28, 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 chloracne is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is remanded. REASONS FOR REMAND The Veteran had active duty from September 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is record. Bilateral Hearing Loss and Tinnitus The Veteran contends his bilateral hearing loss and tinnitus is due to in-service noise exposure, which is conceded. In September 2015, he underwent a VA audiological examination, after which the examiner opined negatively on a relationship between his bilateral hearing loss/tinnitus and service. In support thereof, she reasoned that the Veteran's entrance and separation examinations were both within normal limits bilaterally. The examiner further cited to the Institute of Medicine (IOM) 2006 study that found that there was insufficient scientific evidence for delayed-onset hearing loss related to military noise exposure. Regarding tinnitus, she found there were no complaints of tinnitus during service, acoustic damage was not supported by service treatment records and that the Veteran reported a delayed onset of tinnitus. She therefore opined negatively on a relationship between the Veteran's tinnitus and service. The Board finds the September 2015 VA opinion to be inadequate. Initially, the Board notes that the Veteran's service treatment records contain his September 1966 enlistment examination, and a subsequent, November 1966 examination. The record does not appear to contain a separation examination. Therefore, the examiner's statement that Veteran's entrance and separation examinations were both within normal limits bilaterally was inaccurate. Additionally, the examiner heavily relied on the IOM study that is ultimately inconclusive as to the issue of delayed onset hearing loss. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Therefore, the Board finds that a new opinion is needed that adequately addresses the likely etiology of the Veteran's bilateral hearing loss and tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Bilateral Peripheral Neuropathy and Chloracne The Veteran contends his bilateral peripheral neuropathy of the upper and lower extremities and chloracne are due to his in-service Agent Orange exposure, which is conceded. The RO denied the Veteran's claims based on their findings that such did not manifest within the applicable presumptive period. However, even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide agent exposure, VA must also consider the claim on a direct basis. When a disease is first diagnosed after service, but not within the applicable presumptive period or a presumptive disability, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board finds that a medical opinion is warranted as to whether the Veteran's bilateral peripheral neuropathy of the upper and lower extremities and chloracne are directly due to his in-service Agent Orange exposure. Missing Records The record indicates that there are outstanding private medical records. On remand, those, as well as updated VA treatment records, should be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Request that the Veteran complete an appropriate number of VA Forms 21-4142, Authorization and Consent to Release Information to VA, for any outstanding private treatment records relevant to his claims, to include from his private primary care physician, Dr. Pittman, of the Springfield Clinic and hearing test results from his civilian employer. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile, and inform the Veteran of any attempts to locate such records that could not be obtained. 3. Obtain an opinion regarding the Veteran's claim for service connection for bilateral hearing loss and tinnitus. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Please note that, as the Veteran's service was prior to 1967, service hearing testing was recorded using ASA rather than ISO-ANSI standards. Additionally, service treatment records contain audiological testing from September and November 1966, and do not appear to include a separation examination. Following a review of the record, and examination of the Veteran if deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current bilateral hearing loss or tinnitus had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service noise exposure. The examiner is advised that the 2006 IOM study is inconclusive regarding delayed-onset hearing loss, as noted in the McCray case, and is asked to conduct a search of the relevant literature prior to issuing an opinion. Additionally, the basis for a negative opinion must not be based solely on the lack of evidence of hearing loss in the Veteran's service treatment records or a lack of medical records demonstrating a continuity of care after service. If the clinician finds that the Veteran's current hearing loss or tinnitus is due to post-service factors, the examiner must provide a rationale for why such would be more likely due to post-service factors. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for a VA examination by a clinician with sufficient expertise to determine the nature and etiology of the Veteran's bilateral peripheral neuropathy of the upper and lower extremities. Based on a review of the evidence of record, lay statements, and examination results, the examiner should opine as to the following: Whether such is at least as likely as not (a 50 percent probability or greater) related to service, to specifically include as a result of exposure to Agent Orange? The examiner should note that the Veteran is competent to provide medical evidence, as well as to attest to factual matters of which he had first-hand knowledge, including events and symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case and note what, if any, additional evidence would permit an opinion to be made. 5. Schedule the Veteran for a VA examination by a clinician with sufficient expertise to determine the nature and etiology of the Veteran's chloracne. Based on a review of the evidence of record, lay statements, and examination results, the examiner should opine as to the following: Whether such is at least as likely as not (a 50 percent probability or greater) related to service, to specifically include as a result of exposure to Agent Orange? The examiner should note that the Veteran is competent to provide medical evidence, as well as to attest to factual matters of which he had first-hand knowledge, including events and symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case and note what, if any, additional evidence would permit an opinion to be made. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.