Citation Nr: 21030310 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-32 687 DATE: May 18, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for hypertension is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents during service, or as secondary to type II diabetes mellitus and diabetic nephropathy, is remanded. FINDINGS OF FACT 1. In a December 2004 rating decision, a Department of Veterans' Affairs (VA) Regional Office (RO) denied service connection for hypertension; the Veteran did not appeal the December 2004 rating decision, and no evidence was received within one year of that rating decision. 2. New evidence received since the December 2004 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt, the Veteran's bilateral hearing loss and tinnitus are related to his in-service exposure to loud noise. CONCLUSIONS OF LAW 1. The December 2004 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2004). 2. New and material evidence has been received to reopen the claim for service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 3. The criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385 (2019). 4. The criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1968 to June 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by a VA RO. The Board notes that the Veteran's representative is the Military Order of the Purple Heart, which was once a co-located Veterans service organization (VSO) at the Board. When there is no hearing being held, Informal Hearing Presentations, or IHPs, are required based upon an agreement between the Board and the co-located representative organizations. However, the MOPH no longer wishes to be a co-located VSO and understood that the agreed upon opportunity to submit Informal Presentation Hearings (IHPs) was not available. See September 2020 Third Party Correspondence. Therefore, the Board will continue with appellate consideration of the case. 1. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for hypertension is granted. The Veteran seeks to reopen his previously denied claim for service connection for hypertension. In the December 2004 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for hypertension. The AOJ notified the Veteran of the decision and of his appellate rights in a December 2004 Notification Letter. The Veteran did not initiate an appeal by filing a NOD, nor did he submit new and material evidence within one year of the notification of the December 2004 rating decision. Rating decisions that have not been timely appealed are binding and final based on the evidence on the record at the time of the prior decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. Thus, the December 2004 rating decision became final. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted or considered by the agency decision makers. "Material" evidence is evidence which, either by itself or in conjunction with other previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating a claim. 38 C.F.R. § 3.156(a). In March 2011, the Veteran filed a new claim of entitlement to service connection for hypertension, which was denied again in February 2013. In August 2013, the Veteran filed another claim for service connection for hypertension. In the May 2014 rating decision, the AOJ denied reopening the claim due to the new and material evidence not being submitted. The Board notes that in the May 2016 Statement of the Case (SOC), the AOJ did reopen the claim and denied it on the merits. Notwithstanding the AOJ's actions, the Board has the legal duty to determine whether new and material evidence has been presented to reopen the finally disallowed claim of service connection for hypertension. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The pertinent evidence considered at the time of the December 2004 rating decision consisted of service treatment records, VA medical records, and VA examination reports dated in November 2004 and December 2004. The AOJ initially denied service connection for hypertension on the basis that the Veteran's hypertension was less likely than not related to his diabetes mellitus, type II. The AOJ noted that the service treatment records were silent for any complaints regarding his hypertension condition. The December 2004 VA examiner opined that it could not be answered with certainty if the Veteran's hypertension was related to his diabetes because the conditions were diagnosed at the same time. The examiner remarked that the Veteran was diagnosed with a common type of hypertension and that it was less likely than not related to his service-connected diabetes. In this matter, the Board finds that new and material evidence would consist of evidence that indicates a nexus between the Veteran's hypertension and his service, to include his service-connected diabetes mellitus. The evidence submitted since the December 2004 rating decision consists of VA examination reports dated in January 2013, April 2014, and April 2016, as well as VA medical records. After a thorough review of this additional evidence, the Board finds that the evidence is new, as it was not considered at the time of the December 2004 rating decision. The evidence is also material, as it relates to an unestablished fact. Specifically, the VA examination reports include the Veteran's report of serving in Vietnam and being exposed to herbicide agents. Additionally, the new examination reports provide further information regarding the relationship between the Veteran's hypertension and his diabetes mellitus, to include its associated complications. The newly submitted evidence, taken together with the evidence of the prior record, does, in fact, raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, as new and material evidence has been received since the December 2004 rating decision, the application to reopen the previously denied claim of entitlement to service connection for hypertension is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Service connection for bilateral hearing loss is granted. 3. Service connection for tinnitus is granted. The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus. The evidence of the record establishes that the Veteran has current diagnoses of bilateral hearing loss and hypertension. A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. § 3.303(a). Regarding an in-service injury or event, the Veteran reports being around gunfire, artillery, and helicopter. The Veteran's military occupational specialty (MOS) was as a light weapons infantryman. This MOS has a high probability of exposure to hazardous noise. Accordingly, in-service loud noise exposure has been established. As to whether there is a nexus, the April 2014 VA examiner opined that it was less likely than not that the Veteran's hearing loss was due to his military noise exposure. The examiner noted that the Veteran's MOS had a high probability of acoustic trauma. The examiner stated that the service treatment records showed normal enlistment and separation audiograms with no evidence of threshold shifts consistent with acoustic trauma. The examiner remarked that although hazardous noise exposure is acknowledged, there is no objective evidence of acoustic trauma to link the current disability to military service. Regarding the Veteran's tinnitus, the examiner noted that the Veteran reported his tinnitus beginning during his military service. The examiner opined that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner also opined that it was less likely than not that the Veteran's tinnitus was due to his in-service noise exposure and provided the same rationale used for the hearing loss opinion. In April 2016, the VA examiner also provided a negative nexus opinion. The examiner again noted the normal audiograms in service. The examiner also stated that the Veteran spent years installing floors and used hammers and a tile cutter post-military service. The examiner remarked that the post-military service use of tools and the Veteran's age were likely factors affecting the Veteran's hearing. The examiner acknowledged the Veteran's hazardous noise exposure during his service. The examiner provided the same opinion for the Veteran's tinnitus. The examiner reiterated that the Veteran's tinnitus was most likely a symptom of his hearing loss. The examiners' opinions were based on the absence of a showing of hearing loss during his service. The absence of hearing loss in service is not an absolute bar for entitlement to service connection. Additionally, a review of the service treatment records shows that on the February 1968 pre-induction audiogram, puretone thresholds were not tested or recorded for the 3000 hertz frequency. The puretone thresholds were also not tested or recorded in the August 1968 audiogram. The Veteran's current hearing loss disability show that he exhibits hearing loss in the 3000 hertz frequency. Based on this information, the examiners would not be able to determine if the Veteran experienced any threshold shift in the 3000 hertz frequency. Furthermore, the Veteran reported experiencing tinnitus during his military service. The examiners opined that the tinnitus was a symptom of hearing loss. The examiners did not consider or address the Veteran's lay assertion regarding this symptom as it relates to the development of hearing loss. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Board finds it pertinent that hearing loss and tinnitus are considered organic diseases of the nervous system for VA purposes and, as such, are conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). As a result, the Veteran's statements regarding continuity of symptomatology may be sufficient for purposes of establishing service connection. As explained above, the Veteran reported being exposed to loud noises due to his military duties. The Veteran also reported the onset of tinnitus to be during his military service. The Veteran's military duties as a weapons infantryman did involve him being surrounded by loud noises, such as gunfire and artillery. The Board finds the Veteran's statements regarding his hearing symptoms and his noise exposure in-service to be competent and credible. His statements have remained consistent and evidence of the record tend to support such statements. In a May 2018 private audiogram, it was reported that the Veteran had longstanding loud noise exposure during his two years in the army. Again, it was noted that the Veteran reported constant bilateral tinnitus since the 1970's. The Veteran was assessed to have mild to moderately severe bilateral hearing loss. See June 2018 Private Medical Treatment Record. After considering all of the evidence in its totality, such as the in-service hazardous noise exposure, experiencing tinnitus during and shortly after service, and the information proffered in the opinions and post-service medical records, the Board finds that a reasonable doubt has arisen regarding the onset of the Veteran's hearing loss and tinnitus. Resolving all reasonable doubt in favor of the Veteran, the Board determines that the Veteran's hearing loss and tinnitus are due to his in-service noise exposure. The Board finds that the criteria for service connection for the Veteran's bilateral hearing loss and tinnitus have been met and entitlement to service connection is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. After a review of the evidence of the record, the Board finds that a remand is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for hypertension. The Veteran initially asserted that his hypertension was related to his service-connected diabetes mellitus, type II. At the January 2013, April 2014, and April 2016 VA examinations, the Veteran also reported serving in Vietnam and being exposed to herbicide agents. The Veteran does have verified service in Vietnam during the applicable time period. Therefore, exposure to herbicide agents, to include Agent Orange, is presumed. The Board takes judicial notice of the existence of the finding by the National Academies of Sciences, Engineering and Medicine (NAS) that there is sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. See Veterans and Agent Orange: Update 11 (2018); Smith v. Derwinski, 1 Vet. App. 235, 238 (1991) (regarding judicial notice); see generally Polovick v, Shinseki, 23 Vet. App. 48, 54 (2009) (NAS's statistical analysis of the scientific and medical data pertaining to the health effects of Agent Orange exposure remains a source of relevant, competent evidence that VA may "consider when assessing whether the totality of the evidence is sufficient to establish service connection on a direct basis"). There has been no opinion addressing whether the Veteran's hypertension is due to his presumed exposure to herbicide agents during service. Concerning the theory of secondary service connection, at the April 2014 VA examination, the examiner noted that the Veteran had renal insufficiency secondary to his hypertension. The Veteran is service connected for diabetic nephropathy. In the April 2016 VA Examination, the examiner remarked that it was difficult to say if the Veteran's hypertension was essential in etiology or a consequence of his diabetic nephropathy. The examiner did not explain the reasons for the difficulty in determining the etiology of the Veteran's hypertension, pertaining to its relation to his diabetic nephropathy. Specifically, the examiner did not explain whether the difficulty or inability to provide a more definitive opinion is the result of a need for additional information or that the limits of the current medical knowledge has been exhausted. Based on the foregoing, a remand for an addendum VA opinion is warranted. The matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran, and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. After the foregoing development has been completed to the extent possible, refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran's hypertension. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and/or examination, the VA examiner is requested to provide the following opinions: (a) It is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension had its onset in, or is otherwise attributable to, service, to include presumed Agent Orange or other herbicide agents' exposure while in Vietnam? In providing the above-referenced opinion, the examiner should discuss the finding by NAS that there is sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. The Board acknowledges that there is no presumption of service connection for hypertension due to exposure to herbicide agents. The examiner cannot base the opinion solely on the fact that hypertension is not recognized as a presumptive disease due to herbicide agent exposure. Also, solely relying on the lack of in-service medical documentation is not sufficient in this matter. The examiner is asked to consider and discuss the likelihood that the Veteran's hypertension is related to his exposure to herbicide agents, given the particulars of this Veteran's medical history, family history, and the absence or presence of other risk factors. (b) If it is the examiner's opinion that it is unlikely that the Veteran's hypertension disability was incurred in service or is otherwise related to service the examiner should render a further opinion with respect to whether the disability has been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by his service-connected type 2 diabetes mellitus and diabetic nephropathy. In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation. If his hypertension is deemed not to be due to, or aggravated by, the Veteran's diabetes and/or diabetic nephropathy, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner is requested to explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case 3. After completing the above, and any other development deemed necessary, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.