Citation Nr: 21039913 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-22 118 DATE: July 1, 2021 REMANDED 1. Entitlement to service connection for bilateral hearing loss, to include as secondary to type II diabetes mellitus, is remanded. 2. Entitlement to service connection for tinnitus, to include as secondary to type II diabetes mellitus, is remanded. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. 4. Entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran had active service from July 1964 to June 1966, including active service in the Republic of Vietnam from September 1965 to June 1966. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2019 Board of Veterans' Appeals (Board) videoconference hearing. In a September 2019 decision, the Board denied the issues of service connection for bilateral hearing loss, tinnitus, and PTSD. The Board also remanded the issue of service connection for hypertension for additional development. In September 2020, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Partial Remand (JMPR), which was granted by the United States Court of Appeals for Veterans Claims (Court) later in the same month. The parties agreed that vacatur, in part, and remand were necessary because the Board erred when it failed to obtain an adequate opinion addressing whether the Veteran's bilateral hearing loss is related to his service-connected diabetes mellitus. Additionally, the parties stated that the issue of service connection for tinnitus required remand because it is inextricably intertwined with the Veteran's bilateral hearing loss claim. Furthermore, relating to the Veteran's PTSD claim, the parties found that the Board did not adequately address the probative weight of certain evidence, and did not satisfy its duty to assist in obtaining private medical records identified by the Veteran. Specifically, a May 2014 record reflects that the Veteran reported seeing a private counselor for PTSD, but the Board provided no analysis as to whether the records referred to in the May 2014 treatment record were obtained and associated with the Veteran's claims file. For the reasons stated above, remand of the claims for hearing loss, tinnitus, and PTSD, is necessary for development consistent with the JMPR. Finally, the parties stated that the Veteran's hypertension claim was not in the Court's jurisdiction because the Board's decision on the matter was not final, having been remanded to obtain a VA examination in the September 2019 Board decision. However, the issue is again before the Board, as an examination was obtained, and the claim was denied in an August 2020 Supplemental Statement of the Case. The Board finds that further remand of the Veteran's hypertension claim is necessary. The Veteran underwent a VA examination for assessment of the Veteran's hypertension in December 2019. The examiner provided a negative opinion. However, in August 2020, the examiner was asked to clarify her opinion because she did not specifically comment on the National Academy of Science's Agent Orange: Update 11 (2018), as requested by the September 2019 remand directives. In response, the examiner, a physician, stated that she could not resolve the issue without resorting to mere speculation, and that the expertise of a cardiologist is appropriate to analyze and formulate the requested medical opinion. Accordingly, remand of the Veteran's hypertension claim is warranted to obtain an opinion from a qualified cardiologist. To sum up the above remand reasons, the Board is remanding the claims for service connection for PTSD, bilateral hearing loss, and hypertension for additional development. It is remanding the claim for service connection for tinnitus as inextricably intertwined with the hearing loss claim. The matters are REMANDED for the following action: 1. Request that the Veteran identify any outstanding private medical records relevant to the claims on appeal, to include but not limited to records from the following medical professional: Elaine M. Tripi, Ph.D., CRC; and Any other private medical professional whose records would be relevant to the issues on appeal. 2. Refer the claims file to an appropriate clinician to provide an opinion as to whether the Veteran's bilateral hearing loss disability is related to the service-connected type II diabetes mellitus. The examiner should review the file and be provided with a copy of the facts below. If the examiner believes that an in-person examination is needed to provide an informed opinion, then schedule an examination. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran is service connected for type II diabetes mellitus. The Veteran has current diagnoses of bilateral hearing loss disability and tinnitus. See VBMS entry with document type, "C&P Exam," receipt date 10/20/2014, with "DBQ AUDIO" in the subject field. The Veteran claims that bilateral hearing loss is related to the service-connected type II diabetes mellitus. A May 2010 VA examination report shows that the Veteran was diagnosed with diabetes mellitus in 2003. See VBMS entry with document type, "VA Examination," receipt date 6/15/2010, pp. 5-13. An April 2011 VA treatment record shows that the Veteran was seen with a complaint of decreased hearing, worse in the right ear (AD). He expressed difficulty hearing speech. He also reported occasional ringing/tinnitus in both ears, as well as occasional sharp pain in the right ear canal. The examiner noted there was a positive history of military (Army 2 years) noise exposure without the use of hearing protection. He also reported 32 years of factory work with routine use of hearing protection. Dizziness, ear pressure/drainage, history of middle ear surgery, and family history of hearing loss were denied. The examiner noted the Veteran had a medical history of diabetes mellitus and high blood pressure. See VBMS entry with document type, "CAPRI," receipt date 12/16/2015, with "#2" in the subject field, p. 293. In a January 2019 letter, Dr. Lynn Walker wrote that bilateral hearing loss was "a known complication of [the Veteran's] Type 2 Diabetes Mellitus. As a result, the Bilateral Hearing Loss is more likely than not to be caused by, connected to, and secondary to [the Veteran]'s Diabetes Mellitus." See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 04/03/2019, p. 5. Attached to this January 2019 letter from Dr. Walker is a news release, entitled, "Hearing Loss is Common in People with Diabetes." See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 04/03/2019, pp. 6-8. The Veteran also submitted an article from the American Diabetes Association entitled, "Diabetes and Hearing Loss." See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 04/03/2019, p. 9. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. After a review of the file, the examiner is asked to answer the following questions based upon the evidence of record and sound medical principles: a) Is it at least as likely as not (50 percent or greater likelihood) that the Veteran's bilateral hearing loss was caused by the service-connected type II diabetes mellitus? Please comment on the two articles cited above addressing a possible relationship between hearing loss and diabetes mellitus. Please state upon what facts, medical principles, and/or medical literature support the opinion. b) If the answer to a) is negative, is it at least as likely as not (50 percent or greater likelihood) that the Veteran's bilateral hearing loss is aggravated by the service-connected type II diabetes mellitus? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts, medical principles, and/or medical literature support the opinion. c) If the examiner finds that the service-connected type II diabetes mellitus aggravates the bilateral hearing loss, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the bilateral hearing loss prior to aggravation. If the examiner is unable to establish a baseline for the bilateral hearing loss prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. 3. Obtain a VA medical opinion from a cardiologist to assist in determining the nature and etiology of the Veteran's hypertension. The examiner should review the file and be provided a copy of the below-listed facts. If the examiner believes an in-person examination is needed to make an informed opinion, then schedule an examination. All necessary tests and studies should be accomplished. To assist the examiner in rendering the requested opinion, the Board provides the following relevant evidence, with citations to the record, when applicable: The Veteran had active service from July 1964 to June 1966, including active service in the Republic of Vietnam from September 1965 to June 1966. The Veteran is presumed to have been exposed to herbicide agents during his active service in the Republic of Vietnam. The Veteran is service connected for type II diabetes mellitus. A May 2010 VA examination report shows that the Veteran was diagnosed with both hypertension and diabetes mellitus in 2003. See VBMS entry with document type, "VA Examination," receipt date 6/15/2010, pp. 5-13. In a 2018 update, the National Academy of Science (NAS) Institute of Medicine has found "limited or suggestive" evidence of a relationship between exposure to herbicide agents and the development of hypertension. According to 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. See https://www.nap.edu/read/25137/chapter/1. Hypertension is discussed beginning on page 487, which page number may be entered where it says, "Page # of 716" at the top where it says, "Contents." (Enter page number where "#" is shown and hit "Enter.") An April 2014 private Disability Benefits Questionnaire (DBQ) pertaining to hypertension completed by Dr. Lynn Walker shows the Veteran was diagnosed with hypertension around 2004. See VBMS entry with document type, "Disability Benefits Questionnaire (DBQ) Veteran Provided," receipt date 05/15/2014. In an October 2018 private opinion, Dr. Walker wrote that the Veteran has been diagnosed with hypertension, which she stated is a known complication of his diabetes mellitus type II. As a result, she opined that the Veteran's hypertension is more likely than not caused by, connected to, and secondary to his diabetes mellitus. She also attached a July 2009 research article entitled, "Diabetes and Hypertension" as well as a September 2007 article regarding "Agent Orange and Hypertension. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 10/29/2018, pp. 2 (opinion) & 16, 18-20 (articles, although the full articles were not submitted). An April 2019 private opinion by Dr. Walker again stated that the Veteran's hypertension is a known complication of his Type II diabetes mellitus. She cited to an article from the Journal of Hypertension about "Insulin Resistance and Hyperinsulinemia as Slow Pressor Mechanisms," which she wrote essentially stated that hyperinsulinemia and insulin resistance accompany Type II diabetes mellitus and are pressor mechanisms, which elevate the systemic blood pressure; therefore, they can cause hypertension. As a result, she opined that the Veteran's hypertension is more likely than not caused by, connected to, and secondary to his diabetes mellitus. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 04/10/2019. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Based upon a review of the record, including the relevant records and opinions referenced herein, the VA examiner is requested to opine as to the following questions: a) Is the Veteran's hypertension at least as likely as not (a 50 percent probability or greater) related to his presumed exposure to herbicide agents during active service? In rendering the above opinion, the examiner must specifically comment on the National Academy of Science's Agent Orange: Update 11 (2018), which upgrades hypertension from the category of "limited or suggestive" evidence of an association with herbicide exposure the category of "sufficient" evidence; and whether the Veteran has other risk factors that are more likely the cause of hypertension given his complete medical history. b) If the answer to question (a) is negative, is the Veteran's hypertension at least as likely as not (a 50 percent probability or greater) caused by the service-connected type II diabetes mellitus? Please comment on Dr. Walker's opinions regarding the finding that the Veteran's hypertension is caused by type II diabetes mellitus. Please state upon what facts, medical principles, and/or medical literature support the opinion. c) If the answer to question (b) above is negative, is the Veteran's hypertension at least as likely as not (a 50 percent probability or greater) aggravated by his service-connected type II diabetes mellitus? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts, medical principles, and/or medical literature support the opinion. d) If the examiner finds that the Veteran's service-connected type II diabetes mellitus aggravates his current hypertension, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the Veteran's hypertension prior to aggravation. If the examiner is unable to establish a baseline prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. 4. Readjudicate the claims for service connection for PTSD, bilateral hearing loss disability, tinnitus, and hypertension. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.