Citation Nr: 21028007 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-22 881 DATE: May 10, 2021 ORDER The petition to reopen the claim of service connection for chronic renal failure is granted. Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for chronic renal failure is granted. Entitlement to service connection for coronary artery disease is granted. Entitlement to service connection for right upper peripheral neuropathy is granted. Entitlement to service connection for left upper peripheral neuropathy is granted. Entitlement to service connection for right lower peripheral neuropathy is granted. Entitlement to service connection for left lower peripheral neuropathy is granted. Entitlement to service connection for Charcot arthropathy disease is granted. Entitlement to service connection for diabetic retinopathy is granted. Entitlement to service connection for right hearing loss is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for bilateral tinnitus is remanded. Entitlement to an initial compensable rating for chronic obstructive pulmonary disease is remanded. FINDINGS OF FACT 1. The Veteran had active service within twelve nautical miles of the Republic of Vietnam between January 9, 1962, and May 7, 1975. 2. The Veteran's diabetes mellitus is related to exposure to an herbicide agent. 3. The Veteran's chronic renal failure is proximately due to the Veteran's diabetes. 4. The Veteran's coronary artery disease is related to exposure to an herbicide agent. 5. The Veteran's right upper peripheral neuropathy is proximately due to the Veteran's diabetes. 6. The Veteran's left upper peripheral neuropathy is proximately due to the Veteran's diabetes. 7. The Veteran's right lower peripheral neuropathy is proximately due to the Veteran's diabetes. 8. The Veteran's left lower peripheral neuropathy is proximately due to the Veteran's diabetes. 9. The Veteran's Charcot arthropathy disease is proximately due to the Veteran's diabetes. 10. The Veteran's diabetic retinopathy is proximately due to the Veteran's diabetes. 11. The Veteran has not had right ear hearing loss at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The March 2009 rating decision denying service connection for diabetes, chronic renal failure, and atherosclerotic heart disease is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for chronic renal failure. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for chronic renal failure as secondary to diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for entitlement to service connection for coronary artery disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for right upper peripheral neuropathy as secondary to diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for entitlement to service connection for left upper peripheral neuropathy as secondary to diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for entitlement to service connection for right lower peripheral neuropathy as secondary to diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 9. The criteria for entitlement to service connection for left lower peripheral neuropathy as secondary to diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 10. The criteria for entitlement to service connection for Charcot arthropathy disease as secondary to diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 11. The criteria for entitlement to service connection for diabetic retinopathy as secondary to diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 12. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from October 1964 to September 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board virtual hearing in August 2020 before the undersigned, and a copy of the hearing transcript has been obtained and associated with the record. The Veteran seeks service connection for diabetes mellitus, type II (diabetes) and coronary artery disease due to exposure to an herbicide agent, and chronic renal failure, bilateral upper and lower peripheral neuropathy, Charcot arthropathy disease, and diabetic retinopathy as secondary to diabetes. The Veteran also seeks service connection for bilateral hearing loss and tinnitus, and an initial increased rating for chronic obstructive pulmonary disease (COPD). PREVIOUS FINAL CLAIM AND REOPENING The Veteran previously claimed service connection for diabetes, chronic renal failure, and coronary artery disease in a November 2007 claim. Entitlement was denied by the RO in a March 2009 rating decision. The Veteran was notified of this decision and his procedural and appellate rights in March 2003 at his address of record. The Veteran did not file a notice of disagreement to the decision, and no new evidence was added to the record during the period for appeal. Therefore, the March 2009 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. I. Reopening Not Required Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). When a veteran is claiming entitlement based on a legal change that created a new statutory basis for entitlement, however, reopening is not required. See Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994). Here, the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Navy Act), P.L. 116-23, 38 U.S.C. § 1116A, creates a new statutory basis for entitlement for diseases associated with exposure to herbicide agents and reopening for any such disease is thus not required. The Veteran's claims for service connection for diabetes and coronary artery disease, which are both enumerated diseases under 38 C.F.R. § 3.309(e), may be considered without reopening. II. Reopening Required The Veteran also previously sought service connection for chronic renal disease, which is not an enumerated disease under 38 C.F.R. § 3.309(e) and, therefore, not subject to the previously discussed exception for finality. A claim on which there is a final decision may alternatively be reopened if new and material evidence is submitted. A claim on which there is a final decision may also be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. The March 2009 denial was on the basis that the RO was unable to verify the Veteran's service in the Republic of Vietnam such that he would be entitled to a presumption of exposure to an herbicide agent and, therefore, there was no service-connected disability for which the Veteran's renal failure could be connected to on a secondary basis. Evidence received since the March 2009 rating decision includes the now-established fact that the Veteran was exposed to an herbicide agent. The evidence is new, competent, addresses the grounds for the prior final denial, and raises a reasonable possibility of substantiating the service connection for renal failure claim. The Board concludes that the criteria for reopening service connection are met. 38 C.F.R. § 3.156(a). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). I. Service Connection due to Exposure to an Herbicide Agent The Veteran seeks service connection for diabetes and coronary artery disease, for which he was previously diagnosed, based on exposure to an herbicide agent. Specifically, he contends that during his service aboard the U.S.S. Fletcher from 1965 to 1968, he was at various times within twelve nautical miles of the Republic of Vietnam and is, therefore, eligible for a presumption of exposure provided for by the Blue Water Navy Act. At the August 2020 hearing, the Veteran stated that during his time aboard Fletcher, the ship moved close enough to the Republic of Vietnam that he could see Vietnam unaided, from the deck, at a distance he judged to be very close to the ship. Hr'g Tr. at 2-3. The Veteran further stated that Fletcher was engaged in naval gunfire support close to the shore of Vietnam during this time. A review of the deck logs of Fletcher show that the ship was engaged in naval gunfire support off the shore of Cap Mia, Vietnam, and fired its 5-inch gun in December 1966. Dec. 1966 Deck Log, U.S.S. Fletcher. This is consistent with the Veteran's testimony and service records, which show service on U.S.S. Fletcher from September 1965 to September 1968, and his lay contention regarding being within close proximity of the coastline from December 1966 to January 1967. See April 18, 2016 Letter. Additionally, the Veteran was awarded four battle stars, the Vietnam service medal, the Vietnam campaign medal, and the combat action ribbon during his time in service. The Board finds that it is at least as likely as not that the Veteran served within twelve nautical miles of the Republic of Vietnam during an eligible period and, therefore, under the Blue Water Navy Act, the Veteran is presumed exposed to an herbicide agent. 38 U.S.C. § 1116A; see also 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a). For veterans who have been exposed to herbicide agents, certain diseases are also acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Diabetes and coronary artery disease are enumerated disabilities under 38 C.F.R. § 3.309(e), and therefore a causal relationship between herbicide exposure and the Veteran's diabetes and coronary artery disease may also be presumed. Therefore, having established in-service exposure to an herbicide agent, and a relationship between herbicide agent exposure and the Veteran's diabetes and coronary artery disease, the Veteran is entitled to service connection for diabetes and coronary artery disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. II. Service Connection for Disabilities Claimed as Secondary to Diabetes Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran has applied for service connection for, and been diagnosed with, chronic renal failure, bilateral upper and lower peripheral neuropathy, Charcot arthropathy disease, and diabetic neuropathy. The record shows that each disability has been evaluated as being caused by the Veteran's diabetes, and no evidence indicates otherwise. The Board finds it more likely than not that the Veteran's claimed disabilities were caused by a service-connected disability, diabetes. Therefore, he is entitled to service connection on a secondary basis for these disabilities. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. III. Service Connection for Right Ear Hearing Loss The Veteran seeks service connection for right ear hearing loss. Impaired hearing is only considered a disability for VA service connection purposes when: the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran underwent a January 2016 VA examination. Although the examiner diagnosed the Veteran as experiencing some sensorineural hearing loss, the Veteran was not recorded as having hearing loss for VA purposes. The Veteran's Maryland CNC test was 96%, and the Veteran's auditory thresholds in his right ear was: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 15 15 10 30 35 Here, the January 2016 VA examination was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds the examination showing that the Veteran's current right ear hearing loss is not sufficient to be a disability eligible for service connection is dispositive of the issue at hand. The Veteran's service treatment records do not reflect treatment for, or symptoms of, hearing loss. The Veteran has not identified any other hearing exams or treatment records that would show a level of hearing loss sufficient for service connection purposes. Thus, there is no medical evidence of record suggesting that the Veteran's right ear hearing loss is sufficient for service connection under 38 C.F.R. § 3.385. The Board also considered entitlement to service connection on a presumptive basis. Hearing loss is considered a qualifying chronic disease under 38 C.F.R. § 3.309(a) which may allow a presumptive service connection. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). But the other elements of service connection, including the establishment of a current disability, must still be shown. 38 C.F.R. § 3.307. Because the Board concludes the Veteran does not have a current disability, he cannot establish service connection on a presumptive basis. The Board acknowledges that the Veteran does have sensorineural hearing loss, competently reported tinnitus symptoms, a military occupational specialty of radio which has a conceded moderate probability of noise exposure, and credible lay testimony that he was exposed to the noise from a ship's five-inch gun firing. These facts are not inconsistent with the conclusion that the Veteran's right ear hearing loss does not meet the criteria to be service connected under 38 C.F.R. § 3.385. Without any medical evidence showing that the Veteran has right ear hearing loss sufficient to meet the criteria of 38 C.F.R. § 3.385, the preponderance of the evidence is against finding that the Veteran has a current disability. Therefore, the Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss for the purposes of service connection and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, the Veteran is not entitled to service connection for right ear hearing loss. REASONS FOR REMAND The Veteran seeks service connection for left ear hearing loss and bilateral tinnitus, and an initial increased rating for COPD. The Board concludes that the issues must be remanded. I. Service Connection for Left Ear Hearing Loss and Bilateral Tinnitus The Veteran testified that he was exposed to in-service noise in the form of gunfire from the ship's five-inch gun. Hr'g. Tr. at 4-5. The U.S.S. Fletcher's deck logs confirm that the ship engaged in naval gunfire support while the Veteran was onboard and fired its five-inch gun several times. Although the January 2016 examiner discussed the Veteran experiencing acoustic trauma, he only did so in the context of a "moderate probability" of noise exposure due to the Veteran's job as a radio operator, and did not discuss any exposure to the firing of the ship's five inch gun. An adequate opinion must consider all the relevant evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board will remand to obtain an adequate addendum opinion. Concerning tinnitus, the Veteran testified at the hearing that he experienced tinnitus on a recurrent, but not necessarily constant, basis especially after loud noises such as the firing of his ship's five-inch gun. The January 2016 examiner did not discuss the possibility that tinnitus could be attributed to the Veteran's exposure to the five-inch guns. An adequate opinion must consider all the relevant evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board will remand to obtain an adequate addendum opinion. II. Initial Increased Rating for COPD The Veteran seeks an initial increased rating for his service-connected COPD, currently rated at 0 percent disabling under diagnostic code 6604. In July 2017, the Veteran stated during a primary care visit that he was admitted "a couple months ago" to St. Luke's Hospital for congestive heart failure. The record shows that the Veteran had previously been treated for heart issues at this same facility in 2007. The claims file, however, only contains records from 2007. First, the VA has a duty to assist the Veteran in obtaining the private treatment records from St. Luke's hospital, and the Board will remand for the RO to attempt to obtain these records. See 38 C.F.R. § 3.159(c). The diagnostic code for COPD contains criteria for entitlement when a Veteran's COPD manifests in cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension. See 38 C.F.R. § 4.97, Diagnostic Code 6604. Although the Veteran also has a diagnosis of coronary artery disease, the record does not contain sufficient medical evidence to conclude that the Veteran's congestive heart failure incident in 2017 was or was not a manifestation of his COPD. Combined with the fact that the Veteran has been noted to have "severe" COPD, and the low FEV-1 score recorded in the June 2016 VA examination, the record is sufficient for the Board to remand to obtain another examination so that the Veteran may be properly rated for his disability. Once any additional records have been obtained, a VA medical opinion must be obtained to determine whether the Veteran's congestive heart failure is attributable to COPD, or some other service-connected disability. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left ear hearing loss is at least as likely as not related to service. The examiner shall discuss the Veteran's lay contention that he was exposed to the noise of a five-inch gun firing during service. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's tinnitus is at least as likely as not related to service; or at least as likely as not related to hearing loss, or proximately due to or aggravated beyond its natural progression by service-connected disability? The examiner shall discuss the Veteran's lay contention that he was exposed to the noise of a five-inch gun firing during service. 3. Ask the Veteran to complete a VA Form 21-4142 for St. Luke's Hospital for records from 2007 to the present, and specifically to include the dates of his treatment for congestive heart failure in 2017. Make two requests for the authorized records from the hospital unless it is clear after the first request that a second request would be futile. 4. Once obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected COPD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner also is directed to answer: Is the Veteran's congestive heart failure reported in 2017, or any other heart-related problems, a symptom of his service-connected COPD? Is it possible to distinguish between the symptoms of the Veteran's COPD and any other diseases of the respiratory system with a certainty of more likely as not? If so, do so. (Continued on the next page) The examiner shall discuss the findings of the June 2016 VA examination (heart DBQ) by nurse practitioner P. M. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael D. Wagner, 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.