Citation Nr: A21020475 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 210930-188706 DATE: December 23, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure, is remanded. Entitlement to service connection for a skin disability, claimed as direct and due to herbicide exposure, is remanded. Entitlement to service connection for right lung cancer, claimed as direct and due to herbicide exposure, is remanded. Entitlement to service connection for kidney cancer, claimed as direct and due to herbicide exposure, is remanded. Entitlement to service connection for liver cancer, claimed as direct and due to herbicide exposure, is remanded. Entitlement to service connection for rectal, cancer claimed as direct and due to herbicide exposure, is remanded. Entitlement to service connection for hypertension, claimed as direct, due to herbicide exposure, and as secondary to service-connected disabilities is remanded. Entitlement to service connection for gout, left foot is remanded. REASONS FOR REMAND The Veteran had active military service in the United States Army from November 1967 to November 1969. He was awarded the Vietnam Service Medal and Vietnam Campaign Medal, among other decorations, for this service. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with Department of Veterans Affairs (VA) decision on their claim to seek review. This decision has been written consistent with the new AMA framework as the rating decision on the issue on appeal was issued after the implementation of the new law went into effect. The rating decision on appeal was issued in August 2021. In September 2021, the Veteran filed a Decision Review Request: Board Appeal (NOD) and selected the Direct Review docket (VA Form 10182). See 38 C.F.R. § 19.2(d). As the Veteran choose the Direct Review Board Review Option on the Notice of Disagreement, the Board will consider only the evidence of record at the time of the August 2021 VA Form 10182. See 38 C.F.R. § 20.202. As an initial matter, the Board finds the claims have been mischaracterized as appeals for whether new and relevant evidence has been received. However, review of the August 2021 rating decision reveals that the Agency of Original Jurisdiction (AOJ) in fact found that new and relevant evidence was submitted, reopened the claims, and adjudicated them on the merits. Specifically, for each claim, after listing the evidence reviewed, for each claim the AOJ indicated that "[W]e did not find a link between your medical condition and military service." Therefore, though the AOJ references prior decisions while addressing the evidence of record, a review of the August 2021 decision clearly reveals that the claims were adjudicated on the merits, which could only occur if a finding that new and relevant evidence had been submitted occurred. To be sure, interpreting the claims as reopened by AOJ prevents the Veteran from being prejudiced. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (noting that where the Board reopens a claim, but the AOJ did not, the claim must be remanded for AOJ consideration unless there is a waiver from the appellant or no prejudice would result from the readjudication of the claim); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993) (noting that the Board must consider whether a veteran is prejudiced by a lack of AOJ consideration of the merits of a claim). Indeed, the Board finds this case distinguishable from Hickson, where the Board opened and adjudicated a claim. Here, the Board has found the August 2021 rating decision implicitly, through adjudicating the merits of the claim, reopened them so that the Board could consider the merits of the claims. The Board need not play fact finder or attempt to ascertain why the AOJ did not make a favorable finding that new and relevant evidence was submitted, in the light most favorable to the Veteran, the Board finds it was a harmless clerical error. This finding is supported by the record where here, the evidence clearly supports that the claims were reopened and adjudicated on their merits. Further, this finding is most beneficial to Veteran and in-keeping with the uniquely pro-claimant principles underlying the veterans' benefits system. See Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013); Evans v. Shinseki, 25 Vet. App. 7, 14 (2011) (stating that the VA system is "veteran-friendly" and "non-adversarial"); Kouvaris v. Shinseki, 22 Vet. App. 377, 381 (2009) (noting that the veterans' benefits system is a "veteran-friendly" system); see also Shinseki v. Sanders, 556 U.S. 396, 412 (2009) ("Congress has expressed special solicitude for the veterans' cause. The adjudicatory process is not truly adversarial"). As the United States Court of Appeals for the Federal Circuit put it, "[t]he VA disability compensation system is not meant to be a trap for the unwary." Comer v. Peake, 552 F.3d 1362, 1369 (Fed.Cir. 2009). To interpret the August 2021 rating decision differently would prejudice the Veteran with undue remands. Finally, one of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the Agency of Original Jurisdiction (AOJ) for further development instead of immediately deciding them directly. Nevertheless, even under the AMA the Board still has the duty to remand issues when necessary to correct a pre-decisional duty to assist error. See Pub L. No. 115-55 section (2)(d); 38C.F.R. §20.802(a). As discussed below, after review of all lay and medical evidence of record, the Board finds remands necessary for the claims on appeal. 1. Service Connection for Bilateral Hearing Loss is Remanded. Under the AMA, the Board may only remand for correction of a pre-decisional duty to assist error and "for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim." 38 C.F.R. § 20.802(a). Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant 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) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran last underwent a VA audio examination in November 2009 and was diagnosed with bilateral hearing loss. The VA examiner opined that because the Veteran's hearing was normal at discharge that the current hearing loss was less likely than not related to service. However, the examiner failed to address in-service shifts in the Veteran's hearing levels. Further, VA and private treatment notes show the Veteran has continued to seek treatment for bilateral hearing loss. Given the deficiencies in the November 2009 VA audiology examination and opinions contained therein, a remand for an examination is necessary to assist in determining the etiology of the bilateral hearing loss. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that, when VA undertakes to provide a veteran with an examination, that examination must be adequate for VA purposes). 2. Service Connection for Diabetes Mellitus, Type II is Remanded. Under the AMA, the Board may only remand for correction of a pre-decisional duty to assist error and "for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim." 38 C.F.R. § 20.802(a). Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant 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) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is presumed to have exposure to herbicides, including Agent Orange, based on his service in the Republic of Vietnam. VA and private treatment records show treatment various blood glucose level recordings, but it is unclear whether the Veteran has a current diagnosis of diabetes mellitus, type II. The Veteran has not been provided an examination to determine a current diagnosis of diabetes mellitus since November 2009. VA treatment records show high glucose levels, but the Board is unable to determine whether the Veteran has a current diagnosis of diabetes mellitus, type II, and as such, a remand is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). 3. Service Connection for a Skin Disability is Remanded. Under the AMA, the Board may only remand for correction of a pre-decisional duty to assist error and "for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim." 38 C.F.R. § 20.802(a). The Veteran contends that service connection is warranted for a skin disability including a rash on the upper torso. In June 2009, the Veteran's wife submitted a letter indicating that the Veteran has had a rash on his chest and back since returning from Vietnam. In December 2009, the Veteran also indicated he had a rash that began after service in Vietnam. Private treatment records show a current diagnosis of dermatitis. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant 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) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, the Veteran has not been provided with a VA examination to determine the etiology of any skin disability, therefore, a remand is necessary. 4. Service Connection for Right Lung, Kidney, Liver, and Rectal Cancer is Remanded. The Veteran contends that service connection is warranted for right lung, kidney, liver, and rectal cancer claimed as due to herbicide exposure. The Board notes the Veteran's service records confirm participation in combat operations on the land mass of the Republic of Vietnam during the presumptive period; as there is no affirmative evidence to the contrary, exposure to herbicides is conceded. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's claimed cancers are not listed in § 3.309(e) as disabilities for which presumptive service connection based on exposure to herbicides is available. Nonetheless, service connection must still be considered on a direct basis. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant 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) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has provided treatise evidence on herbicide exposure and treatment records show currently diagnosed cancer. To date, the Veteran has not been provided with a VA examination to determine the etiology of the cancers, therefore, a remand is necessary. 5. Service Connection for Hypertension is Remanded. The Veteran contends that service connection is warranted for hypertension. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant 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) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is service connected for coronary artery disease. To date, the Veteran has not been provided with a VA examination to determine the etiology of any hypertension, therefore, a remand is necessary. 6. Service Connection for Gout, Left Foot is Remanded. The Veteran contends that service connection is warranted for gout in the left foot. VA and private treatment records show a current diagnosis of gout. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant 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) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, the Veteran has not been provided with a VA examination to determine the etiology of any gout, therefore, a remand is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the etiology of any current bilateral hearing loss. After reviewing the claims file, the VA examiner should offer the following opinion: Is it at least as likely as not (50 percent or greater probability) that any current hearing loss had its onset in service or is otherwise related to his active service, to include noise exposure? In rendering the opinions requested above, the VA examiner should assume, as fact, that the Veteran was exposed to loud noises in service. The examiner should also comment on any in-service shifts in the Veteran's hearing. A rationale should be given for all opinions and conclusions rendered. 2. Schedule the Veteran for a VA examination with a medical doctor to determine the etiology of any current diabetes, mellitus, type II. Any necessary testing should be conducted. After reviewing the claims file, the VA examiner should offer the following opinion: Does the Veteran have a current diagnosis of diabetes mellitus, type II? 3. Schedule the Veteran for a VA examination with a medical doctor to determine the nature and etiology of any current skin disabilities. The examiner must have the appropriate expertise and be provided access to the electronic claims file. After reviewing the claims file, the VA examiner should offer the following opinion: Is it at least as likely as not (50 percent or greater probability) that any current skin disabilities had their onset in service or are otherwise related to his active service, to include herbicide exposure? In rendering the opinions requested above, the VA examiner should assume, as fact, that the Veteran was exposed herbicides. The examiner must comment on the lay evidence, including the June 2009 letter from the Veteran's spouse and December 2009 letter from the Veteran indicating that he has had a rash since returning from Vietnam. 4. Schedule the Veteran for a VA examination with a medical doctor to determine the nature and etiology of the current right lung, kidney, liver, and rectal cancers. The examiner must have the appropriate expertise and be provided access to the electronic claims file. After reviewing the claims file, the VA examiner should offer the following opinion: Is it at least as likely as not (50 percent or greater probability) that any of the currently diagnosed cancers had their onset in service or are otherwise related to his active service, to include herbicide exposure? In rendering the opinions requested above, the VA examiner should assume, as fact, that the Veteran was exposed herbicides. The examiner must comment on the treatise evidence regarding herbicide use in Vietnam submitted by the Veteran. 5. Schedule the Veteran for a VA examination with a medical doctor to determine the nature and etiology of any current hypertension. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that any current hypertension was incurred in or caused by the Veteran's active military service? b) Is it at least as likely as not (50 percent probability or greater) that any current hypertension is caused by the Veteran's service-connected disabilities, including coronary artery disease? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any hypertension is aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's coronary artery disease? If the VA examiner opines that any hypertension is aggravated by the coronary artery disease, he/she should indicate the degree of disability before aggravation and the current degree of disability. 6. Schedule the Veteran for a VA examination with a medical doctor to determine the nature and etiology of any current left foot gout. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that any current left foot gout was incurred in or caused by the Veteran's active military service? b) Is it at least as likely as not (50 percent probability or greater) that any current left foot gout is caused by the Veteran's service-connected disabilities? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any left foot gout is aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities? If the VA examiner opines that any gout is aggravated by the service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.