Citation Nr: 21014486 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 20-17 690 DATE: March 12, 2021 ORDER Entitlement to an earlier effective date than August 26, 2017 for the grant of service connection for tinnitus is denied. Entitlement to an earlier effective date than August 26, 2017 for the grant of service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for peripheral neuropathy, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection to obstructive sleep apnea (OSA), to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for peripheral artery disease, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure, is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for bilateral hearing loss in July 1991. A March 1992 rating decision denied service connection for bilateral hearing loss. The Veteran did not submit a notice of disagreement regarding the denial for entitlement to service connection for bilateral hearing loss. 2. After the March 1992 rating decision became final in March 1993, the Veteran filed to reopen his claim for service connection for bilateral hearing loss on August 26, 2017. 3. VA first received the Veteran’s claim for tinnitus on August 26, 2017. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date than August 26, 2017, for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 5010; 38 C.F.R. § 3.400. 2. The criteria for an earlier effective date than August 26, 2017, for service-connected tinnitus have not been met. 38 U.S.C. § 5010; 38 C.F.R. § 3.400 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1963 through April 1967 and November 1971 through July 1990. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an earlier effective date than August 26, 2017 for the grant of service connection for tinnitus and bilateral hearing loss The Veteran contends that an earlier effective date is warranted for his service-connected bilateral hearing loss and tinnitus disabilities. Unless specifically provided, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases, the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. § 3.400 (r), 3.400(q)(2). The fact that a claimant had previously submitted claim applications which had been denied, is not relevant to the assignment of an effective date based on his current application. “Nothing in the statute indicates that an effective date can be set based upon an application that resulted in a final disallowance of the claim.” Wright v. Gober, 10 Vet. App. 343, 347 (1997). “The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” Sears v. Principi, 16 Vet. App. 244, 248 (2002). For a veteran to be awarded an effective date based on an earlier claim, he or she must show clear and unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995); Rudd v. Nicholson, 20 Vet. App. 296, 299 -00 (2006). The Veteran has not previously filed a CUE claim regarding the March 1992 rating decision. Thus, CUE will not be addressed by the Board. In a March 1992 rating decision, the Veteran was denied service connection for bilateral hearing loss. The Veteran did not appeal that decision, and it became final. It was not until August 26, 2017 that VA received his application to reopen the previously denied claim of hearing loss, along with an initial claim for tinnitus. A January 2018 rating decision granted service connection for the Veteran’s bilateral hearing loss and tinnitus disabilities, effective August 26, 2017. The rating decision provided that the effective date was awarded based on the date the Veteran filed his claim. The facts of this case are not in dispute, and the Veteran has not provided specific argument as to why he believes an effective date earlier than August 26, 2017 is warranted. Concerning his bilateral hearing loss claim, the Board finds no evidence of an informal or formal claim to reopen his previously denied claim for service connection for bilateral hearing loss prior to August 26, 2017. Concerning tinnitus, there was no claim prior to August 26, 2017. An effective date of August 26, 2017, the date the Veteran’s claim was received by VA, is the appropriate effective date for the grant of the Veteran’s claims for service-connection for bilateral hearing loss and tinnitus. Although the Board is sympathetic to the Veteran’s assertions, the only date that could serve as a basis for the award of service connection for either bilateral hearing loss or tinnitus is the date of receipt of his claim for service connection for tinnitus, and to reopen his previously denied claim for bilateral hearing loss, which is August 26, 2017. There is no legal entitlement to an earlier effective date of service connection for bilateral hearing loss or tinnitus. As the preponderance of the evidence is against an effective date earlier than August 26, 2017, for the grant of service connection for bilateral hearing loss and tinnitus, the claims must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure, is remanded. The Veteran contends that his hypertension is related to his herbicide exposure during service. The Veteran has submitted arguments and supporting evidence to bolster his contention that he was exposed to herbicide during his service in Thailand. Specifically, he asserts that he was exposed to herbicides in the performance of his military occupational specialty (MOS) in accountant and finance. Additionally, he alleged that he lived, exercised, and often passed through the main gates near or at the perimeter. A review of the record confirms that the Veteran had to travel to and near the perimeter of Ubon and U-Tapao RTAFBs in the performance of his MOS. In a May 2010 bulletin, VA determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source of this information was the declassified Vietnam-era Department of Defense (DOD) document entitled, “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), VA determined that there was some evidence that herbicides of a tactical nature, or that of a greater strength commercial variant, were used. In light of this information, VA has determined that special consideration should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of diseases associated with herbicide exposure. The May 2010 bulletin identifies several bases in Thailand, including Ubon and U-Tapao RTAFBs. VA has indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran served on an air base in Thailand and provided perimeter security. The Board finds that the record is sufficient to support that the Veteran’s MOS, and other activities, placed the Veteran at or near the perimeter of the Thailand military bases. As such, his exposure to herbicides is established based on the facts found. Having concluded that the Veteran was exposed to herbicides during service, the Board takes notice that in November 2018, the National Academy of Sciences upgraded the relationship between hypertension and herbicide 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). https://www.nap.edu/read/25137/chapter/12. Based on the Veteran’s presumed exposure to herbicides during service, the Board finds that a medical opinion should be obtained to address whether the Veteran’s hypertension is related his herbicide exposure during service. 2. Entitlement to service connection for peripheral neuropathy, to include as secondary to diabetes mellitus type II, is remanded. A review of the record confirms the Veteran’s diagnosis of diabetic peripheral neuropathy. See November 2017 C&P Exam. The Board takes notice that the Veteran had an active appeal for a claim for service connection for diabetes mellitus, type II, under the Appeal Modernization Act (AMA), that the Board has recently granted. Considering this favorable action by the Board on the underlying intertwined claim for service-connection for diabetes mellitus type II, the Board has determined that the appropriate remedy for his claim for service connection for peripheral neuropathy is to be remanded until the implementation of the grant for service connection for diabetes mellitus, type II. Post remand and implementation of service connection for diabetes mellitus, type II, the RO should consider whether service connection is warranted for the Veteran’s diabetic peripheral neuropathy under the theory of secondary service connection. 3. Entitlement to service connection to OSA and peripheral artery disease, to include as secondary to diabetes mellitus, type II, is remanded. As addressed above, the Board has recently granted service connection for the Veteran’s diabetes mellitus, type II claim in a separate action under the AMA processing system. In light of this favorable action, entitlement to service connection based on a theory of secondary service connection is available to the Veteran. However, no VA examiner has opined on whether the Veteran’s OSA and peripheral artery diseases have been caused or aggravated by his diabetes mellitus, type II. As such, further development is necessary. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing disability has worsened. His last VA examination for his bilateral hearing loss was in November 2017. Current treatment notes show continued complaints and treatments related to his bilateral hearing loss. The Board finds that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the appropriate clinician to consider the nature and etiology of the Veteran’s hypertension. The examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran’s hypertension is related to his service, to include as a result of his presumed in-service exposure to herbicides. Note that the National Academy of Sciences upgraded the relationship between hypertension and herbicide 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. Also, the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service, including exposure to herbicides. Likewise, the mere fact that a presumption has not been established for any particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Obtain an opinion as to whether it is at least as likely as not that the Veteran’s peripheral artery disease and OSA disabilities were (i.) caused or (ii.) aggravated by his diabetes mellitus, type II disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.