Citation Nr: A21020241 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 190604-57695 DATE: December 17, 2021 ORDER New and relevant evidence has been received to readjudicate service connection for right ear hearing loss. Entitlement to service connection for coronary artery disease (CAD), also referred to as heart disease, is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to a compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. A February 2012 Board decision denied the Veteran's claim for service connection for right ear hearing; the Veteran did not appeal the denial and the decision became final. 2. Since the Board February 2012 Board decision, the Veteran has submitted evidence new and relevant to the issue of entitlement to service connection for right ear hearing loss. 3. The probative evidence of record does not show the Veteran's diabetes and heart disease are related to his active-duty service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. New and relevant evidence has been received, and the criteria to readjudicate the claim for entitlement to service connection for right ear hearing loss are met. 38 C.F.R. §§ 3.156(d); 3.2501(a)(1). 2. The criteria for service connection for CAD are not met. 38 U.S.C. §§ 101, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 101, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1965 to January 1969. With respect to the matters of entitlement to service connection for right ear hearing loss and entitlement to a compensable disability rating for left ear hearing loss, a statement of the case was issued under the legacy system in January 2017. In May 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in August 2018, which is the decision on appeal for those matters. With respect to the remaining matters on appeal, a rating decision was issued by the AOJ in April 2019, and that is the decision on appeal for those matters. In June 2019, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal, and elected the Hearing docket. The Veteran testified before a Veterans Law Judge in January 2021, and a transcript of that proceeding is of record. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) addressed the scope of a claim in regard to the disability claimed. In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. As the record reflects diagnoses of other psychiatric disabilities, and in light of the Court's decision in Clemons, the Board has re-characterized the Veteran's claim for entitlement to service connection for PTSD to include a claim for service connection for an acquired psychiatric disability, to include PTSD, as noted on the title page. New and Relevant Evidence In February 2012, the Board denied service connection for right ear hearing loss. At the time of the February 2012 Board decision, the evidence of record entailed service treatment records, a VA examination, and statements from the Veteran, and transcript from a March 2011 Board hearing. The Board denied service connection for right ear hearing loss, finding that the evidence did not show the Veteran's current right ear hearing loss was due to in-service noise exposure. The Veteran did not appeal this decision, and it became final. VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156(d). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). After considering the evidence received since the February 2012 Board decision, the Board finds new and relevant evidence has been received to readjudicate the Veteran's service connection claim for right ear hearing loss. Since the prior final decision, an additional VA examination was obtained, as well as a new Board hearing, and additional medical records were submitted. The evidence is new, as it was not part of the record at the time of the prior final decision. The evidence is also relevant, as it helps prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). Therefore, the Board finds that the claim for service connection for right ear hearing loss should be readjudicated. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). A veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Entitlement to service connection for diabetes and heart disease. The Veteran contends that his diabetes and heart disability are related to his active-duty service, to include as due to exposure to herbicide agents. As an initial matter, the Board finds that the Veteran has been diagnosed with diabetes and heart disease. Therefore, the issue turns upon whether there is evidence of an in-service event or injury and a nexus between the claimed in-service disease or injury and the present disabilities. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds there is not. The Veteran's service treatment records are silent for any diagnosis for the claimed conditions or complaints related to such conditions. His medical records also do not show diagnoses or complaints for diabetes or heart disease until 2011, more than 40 years after his active-duty service. His medical records further do not relate his condition to his military service and note that the Veteran has a family history of both diabetes and heart issues. The Veteran had provided no medical opinions that relate his current diabetes and heart disease to his active-duty service. Additionally, while the Veteran contends that his conditions are related herbicide exposure, the Veteran's military personnel records do not document that he was stationed in the Republic of Vietnam or its waterways. His records also do not document him being stationed in one of the qualifying bases in Thailand, or in the demilitarized zone (DMZ) of Korea. While the Board acknowledges that the Veteran was briefly sent to the Suwon base in South Korea, the Veteran has provided no documentation showing he was at or near the DMZ, nor any evidence he was otherwise exposed to herbicide agents. Therefore, the Board finds that the Veteran does not have qualifying service in the Republic of Vietnam as required by 38 C.F.R. §§ 3.307, 3.309(e) and exposure to herbicides is not presumed or otherwise found. The Board acknowledges the Veteran's assertions that his diabetes and heart disease are related to his active service, to include herbicide exposure. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any disability is related to his military service, to include diabetes and heart disease, requires medical expertise that the Veteran has not demonstrated since diabetes and heart disabilities can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). In light of the foregoing, the Board concludes that the preponderance of evidence is against the claims and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran's remaining claims. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that he currently suffers from a psychiatric disorder, to include PTSD, that is related to his active-duty service. The issue is remanded to correct a duty to assist error that occurred prior to the May 2019 rating decision on appeal. The Board finds that the Veteran has not been afforded a VA examination for the claim on appeal. VA's duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2019). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the evidence of record shows the Veteran has been diagnosed with chronic adjustment disorder. Further, the evidence of record shows the Veteran served during a time of war as a security patrolmen and air policemen. Although the Veteran was not in combat, the Veteran's statements of witnessing injured soldiers arrive at his base camp for treatment and handling stressful situations as a policeman, to include responding to a rape and weapon discharge reports, are within the scope of his duty. Given the above, the Board finds that a remand is required in order to obtain an examination with an opinion on the etiology of the claimed condition. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for right ear hearing loss. The Veteran contends that his right ear hearing loss is related to his active-duty service. The issue of entitlement to service connection for right ear hearing loss is remanded to correct a duty to assist error that occurred prior to the August 2018 rating decision on appeal. VA medical opinions were obtained in March 2008 and August 2011, but are insufficient to determine whether service connection is warranted. As the Veteran alleges that right ear hearing loss is related to noise exposure in service, and there is no adequate medical opinion of record, failure to obtain an opinion constitutes a predecisional error in the duty to assist. Thus, the Board finds that a remand is required to obtain a new opinion. 3. Entitlement to a compensable disability rating for left ear hearing loss. The Veteran contends that his service-connected left ear hearing loss warrants a compensable rating. The issue of is remanded to correct a duty to assist error that occurred prior to the August 2018 rating decision on appeal. The Veteran filed a claim for increased rating in December 2015. The Veteran also submitted a private audiogram in August 2016 suggesting a worsening in his hearing. However, the AOJ did not schedule the Veteran for an examination to determine the current severity of his condition, despite this evidence of worsening. Therefore, the Board finds that a remand is required in order to obtain a new examination to determine the current severity of the Veteran's condition. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the any diagnosed psychiatric disorder. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran's lay statements concerning any in-service symptoms, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any psychiatric disorder, to include chronic adjustment disorder and PTSD, had its onset during, or is otherwise related to, his active duty service, to include his statements regarding finding a dead body while patrolling, witnessing injured soldiers arrive for treatment, and responding to emergency situations as a security and air policemen. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his left ear hearing loss and the etiology of his right ear hearing loss. The record and a copy of this Remand must be made available to the examiner. The examiner should perform all necessary tests and studies, and all pertinent symptoms and clinical findings should be reported in detail. Following a review of the entire record, to include the Veteran's lay statements concerning his in-service noise exposure, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right ear hearing loss had its onset during, or is otherwise related to, his active-duty service, to include his established in-service noise exposure. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. M. D. Bruce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.