Citation Nr: 21040289 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 11-17 832 DATE: July 3, 2021 REMANDED Entitlement to service connection for arthritis, to include as secondary to in-service exposure to an herbicide agent, is remanded. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), to include as secondary to in-service exposure to an herbicide agent, is remanded. Entitlement to service connection for heart disease, to include as secondary to in-service exposure to an herbicide agent, is remanded. Entitlement to service connection for prostate cancer, to include as secondary to in-service exposure to an herbicide agent, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1968 to April 1970. This matter before the Board of Veterans' Appeals (Board) is on appeal from a September 2010 rating decision and a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky (Agency of Original Jurisdiction (AOJ)). This matter was before the Board most recently in February 2018. The Board remanded these issues to seek verification regarding any possible in-service exposure to an herbicide agent while the Veteran was stationed in Germany. Additionally, the Board remanded the claim for entitlement to service connection for bilateral hearing loss to obtain an addendum opinion. A review of the file reflects that an addendum opinion for the Veteran's bilateral hearing loss was obtained. For the reasons outlined below, the Board finds that the AOJ has not substantially complied with the remand directives in accordance with Stegall v. West, 11 Vet. App. 268 (1998). Another remand is required. 1. Entitlement to service connection for arthritis, COPD, heart disease, and for prostate cancer, each to include as secondary to in-service exposure to an herbicide agent, is remanded. The Veteran has alleged that, during his active service in Germany, he and his unit were exposed to a green substance labeled "toxic" which killed all the grasses, trees, and weeds near his unit's ammunition stores. In the Board's initial decision dated in March 2016, it remanded to request that the AOJ verify his alleged in-service exposure to an herbicide agent in Germany by contacting the U.S. Army and Joint Services Records Research Center (JSRRC) (now known as the U.S. Department of Army, Records Management and Declassification Agency (RMDA)) or any other source that may have relevant information. Thereafter, the Defense Personnel Records Information Retrieval System (DPRIS) response after stating it was unable to document that the Veteran was exposed to Agent Orange or any other tactical herbicides due to a lack of unit records available to it suggested that two potential sources for information concerning the Veteran's possible exposure to chemicals included the U.S. Army Medical Research Institute of Chemical Defense and the U.S. Army Medical Department, Office of the Surgeon General. Upon sending information requests to both of these agencies, the AOJ received a negative response from the U.S. Army Medical Research Institute of Chemical Defense. VA was told, "The mission of the Institute is to discover and develop medical products and knowledge solutions against chemical threats through research, education/training, and consultation. USAMRICD does not maintain medical treatment records of service members and, therefore, is unable to verify the Veteran's exposure while in Germany." Upon sending an information request to the U.S. Army Medical Department, Office of the Surgeon General, the AOJ received a "return to sender" notice due to the use of an incorrect address. Ultimately, the AOJ sent the request to the correct address; however, the agency required a HIPAA Privacy Release Authorization form. The Veteran was notified of this and provided a VA Form 21-4142a, General Release for Medical Provider Information to the VA and a VA Form 21-4142 Authorization to Disclose Information to the VA. Unfortunately, while the Veteran provided this documentation to the AOJ, he did not sign the forms, rendering the authorization unusable. The Veteran has requested that new forms be provided to him so that he may sign them and also asks that the Board refrain from making a decision until this action has been completed. To that end, the Board will remand to provide new VA Forms 21-4142a and 21-4142 to the Veteran. 2. Entitlement to service connection for bilateral hearing loss is remanded The Board remanded the issue of entitlement to service connection for bilateral hearing loss in February 2018 for an addendum opinion which considered a medical treatise provided by the Veteran as well as the concept of delayed onset hearing loss from acoustic trauma during service. The examiner who performed the May 2016 VA examination for bilateral hearing loss apparently was unavailable to render the addendum opinion. A different audiologist provided the requested opinion in September 2019. He stated as follows upon review of the Veteran's service treatment records (STRs): "VBA has asked for an addendum to the Veteran's [December 2015] C&P Hearing Loss and Tinnitus exam. At that exam, the Veteran's STRs were not available for review. The Veteran's examiner provided an addendum on May 23, 2016. These have been reviewed as well as the Veteran's records in VBMS, CPRS, and Virtual VA. This examiner found that the Veteran had a pure tone threshold audiogram done at the Veteran's enlistment April...1968 and a separation audiogram April...1970. Both audiograms indicate normal hearing sensitivity, therefore, for the condition of hearing loss, I opine that it is less likely than not...that his current hearing loss is because of military noise exposure. That is, his separation exam provides documentation of very normal hearing sensitivity that was unchanged from his entrance hearing exam. As to the literature you requested the examiner to read, any literature discussing acoustic trauma is purely speculative when it comes to the topic of inner hair cell regeneration. From my educational experiences, once an inner hair cell is dead, it does not regenerate, per Professor [D.L.], Ph.D, University of Tennessee Department of Audiology." This opinion is flawed and, as such, not probative on the issue of whether bilateral hearing loss is related to active service. The Board is aware that normal puretone thresholds during service do not necessarily preclude service connection. See 38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, an IOM report has indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." See McCray v. Wilkie, 31 Vet. App. 243, 253 (2019). Given the flawed nature of the September 2019 opinion, the Board finds that it is inadequate for VA adjudication purposes and, on remand, the AOJ should obtain another opinion which addresses this matter. In Stegall, 11 Vet. App. at 268, the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the February 2018 remand instructions. Given this error, another remand is required. The matters are REMANDED for the following action: 1. Provide the Veteran with another VA Form 21-4142a, General Release for Medical Provider Information to the VA, and VA Form 21-4142, Authorization to Disclose Information to the VA. Advise him that it is imperative that he sign and return these completed forms so that VA can attempt to corroborate his alleged in-service exposure to an herbicide agent. 2. If, and only if, the Veteran returns signed completed release forms, send them to the U.S. Army Medical Department, Office of the Surgeon General, along with a request to corroborate the Veteran's alleged in-service exposure to an herbicide agent and/or other carcinogens (to include commercial herbicides) in Germany between October 1968 to April 1970. A copy of any request(s) for this information, and any reply, should be associated with the claims file. 3. Thereafter, forward the claims file and a copy of this REMAND to a clinician for an opinion concerning the nature and etiology of the Veteran's bilateral hearing loss. If possible, this opinion should be provided a by clinician other than the clinician who provided the September 2019 VA medical nexus opinion. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral hearing loss is related to active service or any incident of service, to include in-service exposure to acoustic trauma. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the Veteran's bilateral hearing loss meets the threshold to qualify as a disability for VA purposes. The clinician also is advised that the lack of contemporaneous records documenting complaints of or treatment for bilateral hearing loss, alone, is insufficient rationale for a medical nexus opinion. The clinician finally is advised not to review or rely upon a September 2019 VA medical nexus opinion in preparing his or her own opinion. 4. Review the opinion, once obtained, and determine whether it complies substantially with this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268. 5. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.