Citation Nr: 21027191 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 20-23 735 DATE: May 4, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss; the appeal is granted to this extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for bradycardia; the appeal is granted to this extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for restless leg syndrome; the appeal is granted to this extent only. Entitlement to service connection for bradycardia, to include as due to herbicide exposure, is denied. Entitlement to service connection for hypertensive heart disease, to include as due to herbicide exposure, is denied. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, is denied. Entitlement to service connection for restless leg syndrome, to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the November 2015 rating decision that denied service connection for bilateral hearing loss, bradycardia, and restless leg syndrome; this decision became final. 2. Additional evidence received since the final November 2015 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claims for service connection for bilateral hearing loss, bradycardia, and restless leg syndrome. 3. The preponderance of the evidence is against finding that the Veteran was exposed to herbicide agents during his active service. 4. The preponderance of the evidence is against finding that the Veteran's bradycardia is etiologically related to his active service. 5. The preponderance of the evidence is against finding that the Veteran's hypertensive heart disease is etiologically related to his active service. 6. The preponderance of the evidence is against finding that the Veteran's ischemic heart disease is etiologically related to his active service. 7. The preponderance of the evidence is against finding that the Veteran's restless leg syndrome is etiologically related to his active service. CONCLUSIONS OF LAW 1. The November 2015 rating decision denying the claims for service connection for bilateral hearing loss, bradycardia, and restless leg syndrome is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claims for service connection for bilateral hearing loss, bradycardia, and restless leg syndrome. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bradycardia have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for hypertensive heart disease have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for restless leg syndrome have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to September 1971. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the claims file. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction (AOJ), the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans, 9 Vet. App. at 285. 1. New and material evidence to reopen the claim of service connection for bilateral hearing loss 2. New and material evidence to reopen the claim of service connection for bradycardia 3. New and material evidence to reopen the claim of service connection for restless leg syndrome The Veteran's claims for service connection for bilateral hearing loss, bradycardia, and restless leg syndrome were denied in a November 2015 rating on the basis that the evidence did not show that the conditions were incurred in or caused by service. The Veteran did not appeal the November 2015 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b), (c). Accordingly, the November 2015 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that there is a sufficient evidentiary basis to reopen the claims for service connection for bilateral hearing loss, bradycardia, and restless leg syndrome. New evidence received since the last final denial in November 2015 includes the Veteran's statements and testimony at the March 2021 Board hearing as well as his VA and private medical records and examination reports. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran's claims. Accordingly, as new and material evidence has been received, the Board finds that the claims for service connection for bilateral hearing loss, bradycardia, and restless leg syndrome are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). As to restless leg syndrome and bradycardia, the Board has considered whether remand is warranted to allow the AOJ to consider the reopened claims on the merits. After careful review, the Board notes that the SOC finds that new and material evidence has not been received but addresses the evidence of record. The Board finds no prejudice in addressing the merits of this appeal considering this evidence and procedural history. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). Moreover, effective June 19, 2015, the presumptive provisions apply to certain members of the Air Force or Air Force Reserve who had types of contact with C-123 aircraft known to have been used to spray herbicide agents during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(v). For purposes of this paragraph, "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Id. 4. Service connection for bradycardia 5. Service connection for hypertensive heart disease 6. Service connection for ischemic heart disease 7. Service connection for restless leg syndrome The Veteran's VA and private treatment records note diagnoses of bradycardia, hypertensive heart disease, ischemic heart disease, and restless leg syndrome. The Veteran contends that his bradycardia, hypertensive heart disease, ischemic heart disease, and restless leg syndrome stem from herbicide exposure, specifically Agent Orange, during active service. The Veteran does not contend, nor does the evidence suggest, that he has qualifying service in the Republic of Vietnam, in or near the Korean Demilitarized Zone, or in Thailand for purposes of presumptive exposure to herbicide agents pursuant to 38 C.F.R. § 3.307(a)(6). Rather, he contends that while stationed at Fort Bragg he handled vehicles and equipment that were contaminated with Agent Orange from having previously been used in Vietnam. Additionally, he contends that he was exposed to herbicide agents from jumping from C-123 aircraft. The Veteran's DD-214 reflects that he served in the Army and did not have duties as a flight, ground maintenance, or medical crew in C-123 aircraft. The Board notes that the presumption relating to herbicide agent exposure associated with C-123 aircraft is only available for Air Force or Air Force Reserve veterans. See 38 C.F.R. § 3.307(a)(6)(v). As the Veteran's personnel records indicate that he served in the Army, he is not entitled to presumed exposure to herbicide agents due to contact with C-123 aircraft. Furthermore, although personnel records confirm that the Veteran was attached to the 82nd airborne division, and received the parachutist badge, the record does not confirm the types of planes from which the Veteran jumped. Even assuming the Veteran jumped from C-123 aircraft, the record does not confirm that the C-123 aircraft used were the same aircraft used in Vietnam and contemplated by the regulations. No evidence indicates that the Veteran regularly and repeatedly served onboard a C-123 aircraft or had frequent exposure to such planes. In other words, the evidence is insufficient to concede exposure to Agent Orange. As such, service connection based on herbicide agent exposure is not warranted on this basis. Additionally, the Veteran asserts that he may have been exposed to herbicide agents from riding in vehicles or using equipment that was previously used in Vietnam. However, with the express exception of C-123 aircraft known to have been used to spray herbicide agent during the Vietnam era, VA does not concede exposure to herbicide agents resulting from use of vehicles or equipment that was returned from Vietnam. See 38 C.F.R. § 3.307(a)(6)(v). Accordingly, riding in vehicles or using equipment that was allegedly returned from Vietnam does not establish exposure to herbicide agents for the purpose of establishing entitlement to presumptive service connection. Moreover, the Board finds that any service connection theory based on alleged herbicide exposure is unsupported by competent, persuasive evidence. The Board acknowledges the Veteran's March 2021 Board hearing testimony that he believes that the vehicles and equipment that he came into contact with had been used in Vietnam. However, such evidence amounts to mere speculation and is not competent evidence of exposure. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). The "second-hand" exposure alleged by the Veteran is too remote and attenuated to support a finding of actual exposure. Importantly, the Veteran has merely contended generally that the vehicles and equipment he handled in the course of his duties had been exposed to herbicide agents in Vietnam. He essentially is alleging some residual contamination, but such vehicles or equipment actually being present in Vietnam has not been verified. Moreover, the Veteran's generic statements as to his exposure to Agent Orange do not trigger VA's duty to assist because it would ultimately amount to a fishing expedition for VA to take those statements and execute meaningful development, given their broad and generic nature. See Counts v. Brown, 6 Vet. App. 473, 476 (1994). After considering the evidence of record, the Board finds that the preponderance of the competent and credible evidence weighs against finding that the Veteran was, in fact, exposed to herbicide agents during his period of active service. The Board recognizes that the Veteran was not afforded VA examinations for his claims for service connection for his heart disorders and restless leg syndrome. For service connection claims, VA is obliged to provide an examination or obtain a medical opinion only where there is an indication in the record that a veteran's disability may be associated with active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the basis of the claims is that the Veteran contends that he was exposed to Agent Orange. The Veteran does not contend, nor does the evidence show, that his heart disorders or restless leg syndrome began during service or is otherwise etiologically related to service. Because the evidence does not establish exposure to herbicide agents, an examination is unnecessary as there is insufficient evidence of in-service incident to establish service connection. McLendon, 20 Vet. App. 79 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); Waters v. Shinseki, 601 F.3d 1274, 127778 (Fed. Cir. 2010). In sum, the Board finds that the evidence weighs against a finding that the Veteran's heart disabilities and restless leg syndrome are related to active service. Accordingly, as the preponderance of the evidence is against the claims, the benefit of the doubt rule does not apply, and the claims for service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 8. Service connection for bilateral hearing loss An April 2012 VA examiner opined that the Veteran's bilateral hearing loss is less likely than not etiologically related to in-service acoustic trauma. The examiner noted that her opinion was primarily based on the Veteran's service treatment records (STRs) which noted normal hearing at separation from active service with no significant hearing threshold shift from the time of entry into service. The Board finds that the April 2012 VA medical opinion is inadequate because the examiner's opinion improperly focused on the absence of hearing loss at separation from active service. See Hensley v. Brown, 5 Vet. App. 155, 15960 (1993). Consequently, the Board finds that remand for an addendum VA medical opinion is warranted in order to determine the nature and etiology of the Veteran's bilateral hearing loss. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, forward the claims file to a qualified medical professional to obtain an addendum medical opinion regarding the nature and etiology of the Veteran's bilateral hearing loss. If the examiner determines that another physical examination is necessary, such an examination should be scheduled. Following a review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss is etiologically related to his active service. The examiner should consider and weigh the Veteran's lay statements as well as his siblings' April 2021 lay statements regarding onset and continuity of symptomatology in making the determination as to whether a nexus exists between the Veteran's hearing loss and his active service. The examiner is reminded that the absence of documented hearing loss during service cannot serve as the sole basis for a negative finding. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.