Citation Nr: 21030268 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-43 730 DATE: May 18, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to exposure to herbicidal agents, or in the alternative, as secondary to service-connected posttraumatic stress disorder (PTSD), to include anxiety and depression, is remanded. Entitlement to service connection for a heart disability, to include as due to exposure to herbicidal agents, or in the alternative as secondary to service-connected PTSD, to include anxiety and depression, is remanded. Entitlement to service connection for a skin disability, to include as due to exposure to herbicidal agents, is remanded. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. Entitlement to an initial evaluation in excess of 30 percent for PTSD, to include anxiety and depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to March 1970 with additional service in the Army National Guard of Ohio. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2021, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that testimony has not yet been added to the file, as this decision is being processed under the Board's "One Touch" hearing program. A copy of the transcript will be added to the Veteran's claims file in the ordinary course of business. 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicidal agents, or in the alternative, as secondary to service-connected PTSD, to include anxiety and depression, is remanded. A June 2017 VA examiner endorsed a diagnosis of essential primary hypertension and found this was less likely as not incurred in or caused by the Veteran's slight shift in readings from enlistment to discharge, as well as his heightened examinations for hypertension in service. The June 2017 VA examiner explained the Veteran carried a diagnosis of essential primary hypertension, diagnosed in 2016, and according to cited literature, there was no identifiable cause of high blood pressure but that his type of hypertension tended to develop gradually over many years. However, contrary to the June 2017 VA examiner's findings, of record is a January 2003 private medical record, which noted a diagnosis of hypertension. Thus, as the June 2017 VA opinion is factually inaccurate as to date the Veteran was diagnosed with hypertension, another opinion is needed. Further, while hypertension is not enumerated by 38 C.F.R. § 3.309(e) as a disease presumptively associated with herbicide exposure, the publication of a National Academy of Science (NAS) study, Veterans and Agent Orange: Update 11 (2018), has found "sufficient evidence" of an association between hypertension and exposure to herbicide agents such as Agent Orange. This publication upgrades hypertension's previous classification in the category of "limited or suggestive" evidence of an association, to the category of "sufficient" evidence of an association. According to the NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, as the Veteran had service in the Republic of Vietnam from March 1969 to March 1970 and herbicide exposure is therefore presumed, an opinion addressing the claim on this basis is warranted. The clinician should also address the NAS's findings in his or her report. Also, in an August 2017 statement, the Veteran reported his hypertension was directly caused from his PTSD. An opinion addressing the claim on this basis is needed. Further, during the June 2017 VA examination and in May 2021 testimony, the Veteran identified relevant outstanding private treatment records, from Dr. Johnson, pertaining to his hypertension claim. A remand is required to allow VA to obtain authorization and request these records. 2. Entitlement to service connection for a heart disability, to include as due to exposure to herbicidal agents, or in the alternative as secondary to service-connected PTSD, to include anxiety and depression, is remanded. In an August 2017 statement the Veteran reported his atrial fibrillation was directly caused by his PTSD and during his hearing his representative referenced articles regarding a relationship between mental health problems and heart disability that the representative reported would be associated with the written record. Additionally, in May 2021 testimony, the Veteran reported he felt "flutters" in his chest during service and since service. A June 2017 VA examiner found, in part, the Veteran's diagnosis of atrial fibrillation could not be termed as ischemic heart disease in order to qualify for a presumption of service connection as due to in-service herbicide exposure. However, there is no opinion of record which address the claim as secondary to service-connected PTSD and on a direct incurrence basis. Accordingly, the claim is remanded for a VA examination and opinions to address the claim based on these theories of entitlement. However, the Veteran is also advised that the Board is not at this time able to make any finding as to the nature or extent of any alleged "flutters" in his chest during service and since service or a relationship between any such "flutters" and his active service, and the development directed in this remand should not be interpreted as any findings in this regard. 3. Entitlement to service connection for a skin disability, to include as due to exposure to herbicidal agents, is remanded. A June 2017 VA examiner found, in part, the Veteran did not have a current diagnosis of skin condition, had not seen a physician or provider for this complaint, and did not have diagnostic studies on record. However, in an August 2018 substantive appeal the Veteran reported he had had places frozen on his hands and face that were pre-cancerous. He testified that rashes in service continued after service and that he had treatment from a private dermatologist for precancerous growths. Further, a May 2018 VA treatment record noted the Veteran had skin neoplasms. Accordingly, as there is evidence of current disability, another examination, with consideration of a July 1968 service treatment record which noted the Veteran had a rash on his back, and a heat rash on his thighs, abdomen, and lower legs, is warranted. Further, as the Veteran has identified relevant outstanding private treatment records from a dermatologist, a remand is required to allow VA to obtain authorization and request these records. 4. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. In May 2021 testimony, the Veteran described he was scheduled for a left ear surgical assessment from VA in May 2021 due to an assessment of a perforated eardrum. Thus, as the severity of the Veteran's disability may be impacted by this occurrence, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss. Additionally, as the Veteran reported he had a left ear surgical assessment from VA in May 2021 updated VA treatment records, including from the Chillicothe VA Medical Center (MC), since July 2018, should be obtained and associated with the claims file. 5. Entitlement to an initial evaluation in excess of 30 percent PTSD, to include anxiety and depression, is remanded. In an August 2017 statement, the Veteran reported, in part, his psychiatrist recently doubled his depression medication and prescribed sleep medication. Additionally, in an August 2018 substantive appeal, the Veteran reported, in part, PTSD related symptomology, including his impairment with his ability remember things, forgetting to do things, as well as nightmares and problems sleeping. However, the most recent June 2017 VA examination report only endorsed symptoms of depressed mood and anxiety. As the record reflects the Veteran's service-connected PTSD may have increased in severity since he was last examined by VA in June 2017, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. The matters are REMANDED for the following actions: 1. Obtain the Veteran's updated VA and non-VA treatment records, including from the Chillicothe VAMC since July 2018 to the present, to include a May 2021 left ear surgical assessment. 2. Ask the Veteran to complete a VA Form 21-4142 for any relevant medical providers, to include records from his private family doctor, Dr. Johnson and a private dermatologist. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for his hypertension. The clinician must review the claims file. The clinician is asked to provide a response to the following: (a.) Whether it is at least as likely as not that the Veteran's hypertension had its onset during or is etiologically related to service, to include exposure to herbicide agents? The clinician is asked to consider and address, as appropriate, the findings of the NAS in Veterans and Agent Orange: Update 11 (2018) which has found sufficient evidence of an association between hypertension and exposure to herbicide agents. Please explain. (b.) Whether the Veteran's hypertension is at least as likely as not proximately due to service-connected psychiatric disability. Please explain. (c.) Whether the Veteran's hypertension is at least as likely as not aggravated (any increase in disability) by service-connected psychiatric disability. Please explain. 4. Schedule the Veteran for a VA examination for his heart disability. The clinician must review the claims file. The clinician is asked to provide a response to the following: (a.) Whether any identified heart disability is at least as likely as not related to service, including with consideration of the Veteran's May 2021 testimony in which he reported he had chest "flutters" during and since service. Please explain. However, please note that the Board is not at this time making a finding as to the nature or extent of any alleged "flutters" in the Veteran's chest during service and since service or a relationship between any such "flutters" and his active service. The clinician should simply consider whether the alleged in-service report of chest "flutters" is of such a nature that the Veteran's heart disability would be at least as likely as not etiologically linked to it if it were found to have occurred. (b.) Whether any identified heart disability is at least as likely as not proximately due to service-connected psychiatric disability. Please explain. (c.) Whether any identified heart disability is at least as likely as not aggravated (any increase in disability) by service-connected psychiatric disability. Please explain. 5. Schedule the Veteran for a VA examination for his skin disability. The clinician must review the claims file. The clinician is asked to provide a response to the following: Whether any identified skin disability, including skin neoplasms, is at least as likely as not related to service, including with consideration of a July 1968 service treatment record which noted the Veteran had a rash on his back and a heat rash on his thighs, abdomen, and lower legs. Please explain. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The clinician 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. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD, to include anxiety and depression. The clinician 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 clinician must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the clinician should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 8. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.