Citation Nr: 21031437 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-62 780 DATE: May 21, 2021 ORDER Entitlement to service connection for coronary artery disease (CAD) is granted. REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran's exposure to herbicide agents as a Blue Water Navy veteran during deployment to the Republic of Vietnam has been conceded. 2. The Veteran has a current diagnosis of CAD. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for coronary artery disease have been met. 38 U.S.C. §§ 1110, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1968 to May 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A July 2017 rating decision, in pertinent part, denied entitlement to service connection for a heart condition and bilateral hearing loss, and the Veteran timely perfected an appeal. See September 2017 Notice of Disagreement; November 2017 Statement of the Case; November 2017 VA Form 9. A September 2017 rating decision denied entitlement to service connection for PTSD and tinnitus, and the Veteran timely perfected an appeal. See September 2017 Notice of Disagreement; November 2017 Statement of the Case; November 2017 VA Form 9. In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge, a transcript of which is of record. The Veteran's claim for service connection for PTSD has been expanded as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a service connection claim for a diagnosed psychiatric disability encompasses all psychiatric disabilities shown by the record, however diagnosed). Service Connection for CAD The Veteran seeks service connection for CAD, which he contends is due to herbicide exposure during service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Recently, the United States Court of Appeals for the Federal Circuit held that 38 U.S.C. § 1116 unambiguously expressed Congress' intent that those who served in the 12 nautical mile territorial sea of the "Republic of Vietnam" are entitled to the presumption of herbicide exposure. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). The Board further notes that, on June 25, 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019, which extends the presumption of exposure to herbicide agents to those veterans who served within the 12 nautical miles of Vietnam. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019) (effective January 1, 2020). Service connection based on herbicide exposure will be presumed for certain specified diseases, to include ischemic heart disease (which includes atherosclerotic cardiovascular disease including coronary artery disease), that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). As an initial matter, the Board notes that the Veteran has been diagnosed with CAD. See, e.g., January 2017 Private Treatment Records. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As noted above, CAD is a disability for which presumptive service connection based on herbicide exposure can be granted under 38 C.F.R. § 3.307 (a)(6) and 38 C.F.R. § 3.309 (e). Thus, the sole issue in this case is whether the Veteran had service in Vietnam, such that exposure to an herbicide agent can be presumed. Personnel records show that the Veteran served aboard the USS Tripoli (LPH-10) from February 1970 to January 1971 when it was deployed in support of operations in Vietnam. See also Logbooks. In an April 2021 memorandum the RO made the determination that exposure to herbicides was conceded based on the Veteran's nautical service in one or more of the approved Republic of Vietnam bays or harbors and based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. See also March 2021 Records Research Response (verifying herbicide exposure). As such, herbicide exposure may be presumed and entitlement to service connection for CAD is granted. REASONS FOR REMAND The Veteran contends that he has an acquired psychiatric disorder related to service. He reported an in-service stressor regarding his sister's fiancé being killed while returning to Vietnam. See September 2017 Statement in Support of Claim for PTSD. During the November 2020 Board hearing, the Veteran testified that his depression started soon after discharge from active duty in the early 1980s. Post-service VA treatment records reflect that the Veteran has been diagnosed with PTSD and depression. To date, the Veteran has not been provided with a VA examination. The Board finds that the Veteran's reported in-service stressors and post-service diagnoses are enough to meet the low threshold set forth in McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). As such, the Veteran should be afforded a VA examination to determine the nature and etiology of his acquired psychiatric disorder. Regarding the issue of entitlement to service connection for bilateral hearing loss, the Board finds that a VA addendum medical opinion is necessary before the claim can be decided on the merits. The Veteran has been diagnosed with bilateral hearing loss, and the severity of his hearing loss in each ear meets the criteria for a disability as defined by 38 C.F.R. § 3.385. See May 2017 VA Examination Report. The Veteran's service records indicate that he served as an aircraft structural mechanic. As this military occupational specialty (MOS) has been determined by the Department of Defense to involve a "highly probable" likelihood of hazardous noise exposure, in-service noise exposure is conceded. See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Highly Probable" likelihood of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event). The Veteran was afforded a VA audiological examination in May 2017. Following a physical examination of the Veteran and a review of the claims file, the VA examiner determined that the Veteran currently had bilateral hearing loss. The examiner opined that the Veteran's bilateral hearing loss was not related to service. The examiner noted that there was no entrance audiogram in the service treatment records. The examiner indicated that "[d]ue to normal discharge testing and significant, post-[s]ervice noise exposure, Veteran's current hearing loss, is less likely than not due to [s]ervice." Here, the May 2017 VA examiner based the negative nexus opinion, in large part, on a lack of evidence of treatment for bilateral hearing loss without fully considering the Veteran's lay statements alleging symptoms in service and continuity since. Relying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, hearing acuity within normal limits on separation does not preclude service connection for a current hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Regarding tinnitus, the examiner did not offer an opinion because the Veteran apparently denied having tinnitus during the examination. The Board notes that the Veteran did not file a service connection claim for tinnitus until August 2017, i.e., subsequent to the VA examination. Since the May 2017 VA examination, the Veteran has asserted that he experienced both hearing loss and tinnitus during service and since service. See November 2020 Hearing Transcript. In light of the foregoing, the claim must be remanded for an addendum opinion with a more complete rationale regarding the etiology of the Veteran's currently diagnosed bilateral hearing loss and tinnitus. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence...is essential for a proper appellate decision"). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records for the period from April 2020 to the present, documenting treatment for the issue on appeal. The Veteran should also be given the opportunity to identify and/or submit any additional private treatment records pertinent to his claim. 2. After all available records have been associated with the claims file, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of any and all acquired psychiatric disorders diagnosed proximate to, or during the pendency of, this appeal. The entire claims file and a copy of this Remand must be made available to and reviewed by the examiner, and it should be confirmed that such records were available for review. 3. Following a review of the record and an examination of the Veteran, the examiner should render opinions as to the following: (a.) Provide diagnoses for any acquired psychiatric disorders found to be present during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. (b.) Specifically, state whether the Veteran has a current diagnosis of PTSD. If a diagnosis of PTSD is not deemed appropriate, explain why the Veteran's reported symptoms do not meet the diagnostic criteria for PTSD and reconcile those findings with the PTSD diagnoses in the VA treatment records. (c.) If a diagnosis of PTSD is appropriate, the examiner must identify the specific stressor(s) underlying the PTSD diagnosis and opine whether the stressor involves fear of hostile military or terrorist activity. In so opining, the examiner must acknowledge and discuss the Veteran's reports of hearing about his sister's fiancé dying in a plane crash. (d.) With respect to each acquired psychiatric disorder, other than PTSD, found to be present and/or diagnosed proximate to or during the pendency of the appeal (to specifically include depression), the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, was caused by, or is otherwise related to, the Veteran's military service. In offering this opinion, the examiner must acknowledge and discuss the Veteran's reports of hearing about his sister's fiancé dying in a plane crash and his reports of feeling depressed shortly after service separation. In rendering the requested opinions, the examiner should consider all relevant treatment records and statements of record, to include service and personnel records, the Veteran's statements, lay statements from the Veteran's family and friends, and VA treatment records. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After all available records have been associated with the claims file, obtain an addendum opinion regarding the nature and etiology of the Veteran's diagnosed bilateral hearing loss and tinnitus. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss had its onset during service or is causally or etiologically due to in-service noise exposure, to include working around aircraft and exposure to rifle fire. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's tinnitus had its onset during service or is causally or etiologically due to in-service noise exposure. In so opining, the examiner should explain the significance of normal hearing at separation in relation to the likelihood military noise exposure caused permanent hearing damage, including addressing theories of delayed/latent onset of hearing loss. For purposes of this opinion, the examiner should presume that the Veteran suffered an "in-service injury" of acoustic trauma. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. 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 and the relevant sciences as applicable to this case, which may reasonably explain the medical guidance in this study of this case. 5. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran's claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.