Citation Nr: 21041747 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-17 281 DATE: July 10, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder is dismissed. The claim to reopen the previously denied claim of entitlement to service connection for hypertension is granted. Entitlement to an initial 50 percent evaluation for service-connected depressive disorder is granted. Entitlement to an initial compensable evaluation for bilateral hearing loss prior to January 15, 2019 is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure is remanded. Entitlement to service connection for residuals of a nasal injury is remanded. Entitlement to service connection for a heart disorder, to include as secondary to herbicides, is remanded. Entitlement to service connection for sleep apnea, to include as due to residuals of a nasal injury and/or caused or aggravated by a heart disorder, is remanded. Entitlement to service connection for a chronic respiratory disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to an evaluation higher than 10 percent on and after January 15, 2019 is remanded. FINDINGS OF FACT 1. On the record at the March 2021 hearing, the Veteran explicitly, unambiguously, and with knowledge of the consequences expressed his desire to withdraw the issue of entitlement to service connection for posttraumatic stress disorder. 2. New evidence constructively of record from 2018 relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hypertension. 3. The symptoms of the service-connected depressive disorder cause occupational and social impairment with reduced reliability and productivity. 4. At worst, the Veteran had Level I hearing acuity in the right ear and Level VI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim of entitlement to service connection for posttraumatic stress disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria to reopen the previously denied claim of entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156. 3. The criteria for an initial 50 percent evaluation for service-connected depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9435. 4. Prior to January 15, 2019, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Army from April 1969 to November 1970. The Veteran served in the Republic of Vietnam during the Vietnam War. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2013, September 2015, and May 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office. In March 2021 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge and a transcript of the proceeding is of record. All requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Withdrawal 1. Entitlement to service connection for posttraumatic stress disorder is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). In the present case, the Veteran orally and explicitly withdrew the issue of entitlement to service connection for posttraumatic stress disorder at the March 2021 hearing. The VLJ confirmed on the record that the Veteran desired to withdraw the issue, and the VLJ explained the consequences of withdrawing the claim. The Veteran expressed understanding of the consequences and was unambiguous in his desire to withdraw the claim. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. New and Material Evidence Service Connection 2. The claim of entitlement to service connection for hypertension is reopened. The Veteran seeks to reopen a previously denied claim of entitlement to service connection for hypertension. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a March 2013 rating decision, the RO denied service connection for hypertension because the disease was neither occurred in nor caused by the Veteran's period of service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the 2013 decision includes the Veteran's service treatment records (STRs) and DD 214, lay testimony, and private treatment records. The STRs did not include a diagnosis of hypertension or treatment for high blood pressure in service. The Veteran's DD 214 confirms his presence in Vietnam during the Vietnam War, and the Veteran is presumed exposed to herbicides. The private treatment records show that hypertension was diagnosed in December 2009. In October 2011 correspondence, the Veteran indicated that hypertension was due to in-service herbicide exposure. The evidence available at the time of the prior decision did not include competent evidence of a direct relationship between the diagnosed hypertension and the Veteran's period of service. Since then, a 2018 National Academy of Sciences (NAS)/Institute of Medicine (IOM), Veterans and Agent Orange report update has been released that now shows hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. 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. The Board takes judicial notice of the IOM study and it is constructively of record. Euzebio v. McDonough, 989 F.3d 1305 (2021) (finding that constructive possession requires that the evidence be relevant and reasonably connected to the claim; it does not require that the evidence be specific to the claimant or have a direct relationship to the claim). The Board finds that new and material evidence has been obtained since the 2013 rating decision. The 2018 IOM study is new because it did not exist at the time of the prior denial, and it is relevant because it relates to an unestablished fact necessary to establish the claimevidence of an etiological relationship between the currently diagnosed hypertension and the Veteran's period of service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. When considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, the Veteran's claim is reopened. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an appeal is based on an initial rating for a disability, evidence contemporaneous with the claim and the initial rating decision is most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). 3. Entitlement to an initial evaluation higher than 30 percent for service-connected depressive disorder The Veteran seeks an initial evaluation higher than 30 percent for service-connected depressive disorder. The depressive disorder is evaluated under the General Formula for Mental Disorders (General Formula) at 38 C.F.R. § 4.130. Under the General Formula, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The relevant evidence for this issue includes VA and private treatment records, VA and private examination reports, and the Veteran's lay testimony. Overall, the evidence shows that the service-connected depressive disorder has more nearly approximated the 50 percent evaluation criteria throughout the period on appeal. In October 2011, the Veteran wrote that he was aggressive and demanding with others, and that he had periods where he recalled traumatic experiences from his time in Vietnam. At a December 2012 VA examination, the Veteran reported he had been married to his current wife for 18 years and had distant relationships with his children and grandchildren from his prior marriage. In his free time, he attended church or went out to eat. He reported he was quite active in his church. The Veteran worked full-time as an inspector and reported that in his career he got along well with the public, supervisors, and coworkers. He denied any suicidal or homicidal ideations, or history of psychiatric treatment. For VA rating purposes, the 2012 examiner identified symptoms of depressed mood, anxiety, chronic sleep impairment, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner also noted the Veteran met some of the criterion for posttraumatic stress disorder, including symptoms of detachment from others and irritability or outbursts of anger. The examiner also noted that those symptoms did not cause clinically significant distress or impairment in occupational or social functioning. Mental status examination did not show any thought disorder and the Veteran denied suicidal or homicidal ideations. He was alert and oriented, and his memory was intact. His mood was depressed and his affect was constricted. The examiner found the Veteran was not a danger to himself or others. Overall, the 2012 examiner estimated the functional impairment from the depressive disorder was occupational and social impairment due to mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by medication. In March 2017, the Veteran wrote that symptoms of depression affected his relationship with family and his few associates. He also described difficulty enjoying activities. March 2017 VA treatment notes report the Veteran sought mental health treatment for symptoms of significant irritability and mood fluctuations. He denied suicidal or homicidal ideations. The Veteran underwent a VA diagnostic interview in April 2017. At that time, he reported he had "anger issues," and snapped at his wife. He denied any physical aggression. He also reported frequent dreams about his time in Vietnam. He described his mood as "generally okay," but felt he was quick to anger especially with his wife and while driving. He also endorsed frequent periods of depression and isolation. He worried how his anger impacted his relationships. He denied any suicidal or homicidal ideations. The treatment provider noted symptoms of depressed and irritable mood, loss of interest and pleasure, sleep disturbance, change in appetite, poor concentration, diminished energy level, anxiety, worry, and restlessness. On mental status examination, the Veteran was well-groomed with appropriate behavior. He did not have any thought disturbance, and he denied suicidal or homicidal ideations. The Veteran was assessed as not being a risk to himself or others and was referred for medication and therapy. May 2017 VA treatment notes document the Veteran scored a 14 on a depression health questionnaire, indicative of moderate symptoms. The Veteran denied suicidal ideations and had just begun taking medication to treat his psychiatric symptoms. June through July 2017 VA treatment notes report the Veteran's mood was "coming and going," but generally he had been less argumentative. He continued to endorse periodic episodes of depression and anxiety with generally low energy and low motivation. He also described frequent thoughts about his deployment and feelings of regret. He denied any suicidal or homicidal ideations. He did endorse symptoms of depression, loss of interest, sleep disturbance, appetite changes, poor concentration, low energy, irritability, muscle tension, worry, restlessness, intrusive memories, nightmares, avoidance behavior, persistent negative emotions, and hypervigilance. September to December 2017 VA treatment notes report the Veteran's mood was "pretty good" and "fine," he had not been getting into arguments, and he was working and keeping busy. He denied any recent disagreements with his wife. He regularly denied suicidal ideations but did report ongoing periods of depression with decreased energy and motivation. The Veteran was participating in group therapy and was observed to be well-groomed with logical and goal directed thoughts. The Veteran endorsed improved depressed mood, improved loss of interest, sleep impairment, change in appetite, poor concentration, low energy, irritability, muscle tension, improved worry, improved restlessness, improved difficulty concentration, intrusive nightmares and memories, avoidance behavior, persistent negative emotions, hypervigilance, and exaggerated startle. The Veteran underwent another VA examination in January 2019. The Veteran was working full-time, was not taking any psychiatric medication, and had not been treated for mental health issues since 2017 because it "wasn't doing any good." Mental status examination was normal, except the Veteran's mood was depressed. For VA rating purposes, the examiner identified symptoms of depressed mood only. Overall, the examiner found that the psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran submitted a private psychiatric assessment from Dr. JG in February 2021. Regarding his social functioning, Dr. JG noted the Veteran had family relationships with his spouse, his children, and a brother. He had cosmetic acquaintances, but no meaningful friendships. He was able to independently attend to his self-care. The Veteran was working full-time and denied ever being fired for poor work performance of difficulties interacting with co-workers, supervisors, or consumers. He did have a pattern of quitting jobs with minimal to no notice. He denied having a pattern of missing or being late to work within the last 10 years. The Veteran had not participated in mental health treatment since 2017 because he did not find it helpful, and he worried about the stigma and consequences of reporting any suicidal ideation. The Veteran described his most significant symptoms included periods of depression where he was more prone to anger and irritability (including yelling and/or swearing) over minor or routine stressors. He reported impaired motivation, indifference and apathy during these periods that resulted in failure to independently and successfully follow through with basic "self-cares" and errands. He tended to isolate himself generally, but during depressive episodes he further isolated and restricted contact with his family. The Veteran reported he was most distressed by the impact his symptoms had on his social functioning, and that he was overall successful at work. He did have routine difficulty with motivation, and he felt less depressed when he was focused on work. On mental status examination, the Veteran's mood was dysphoric but stable. He did not endorse active or passive thoughts of suicide at the time of the examination. There was no evidence of gross thought impairment. For VA rating purposes, Dr. JG noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (such as a worklike setting), suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Overall, Dr. JG concluded the Veteran's unspecified depressive disorder resulted in significant impairment consistent with the 70 percent evaluation criteria. In support of that opinion, Dr. JG reported that since 2011 the Veteran had not been able to retain friendships and periodically isolated from his family. Regarding reckless and impulsive behaviors, Dr. JG explained the Veteran had prominent "road rage" episodes and occasionally approached other drivers in an aggressive manner. Regarding the suicide risk assessment, the Veteran did endorse suicidal ideation with some intent to act. The Veteran was not currently at an elevated risk for imminent suicide but had an overall elevated risk for future suicidal ideation or behaviors. Thus, Dr. JG concluded a 70 percent rating was warranted for pattern of reckless behaviors and suicidal behaviors and ideation, compounded by depression, social impairment, and pervasive inability to discuss mental health issues. The Board finds that the Veteran's symptoms have more nearly approximated the 50 percent rating criteria for the entire period on appeal when considering the overall impairment in the Veteran's occupational and social functioning. The symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss are contemplated by the 30 percent rating criteria. The symptoms of flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships are contemplated by the 50 percent rating criteria. The VA treatment records document several symptoms that are not specifically listed at any rating criteria, and the Board finds that those symptoms are analogous to symptoms listed at the 50 percent rating criteria and/or cause occupational and social impairment at the level of the 50 percent rating criteria. The unlisted symptoms include detachment from others, irritable mood, loss of interest and pleasure, change in appetite, poor concentration, diminished energy level, worry, restlessness, low motivation, intrusive thoughts, nightmares, muscle tension, avoidance behavior, persistent negative emotions, hypervigilance, and exaggerated startle response. The symptom of nightmares is consistent with chronic sleep impairment which is listed at the 30 percent rating criteria. The symptom of disturbances of motivation and mood listed at the 50 percent rating criteria approximates the symptoms of irritable mood, worry, low motivation, loss of interest and pleasure, diminished energy level, restlessness, and persistent negative emotions. Regarding the persistent negative emotions, the 70 percent criteria include the symptom of near-continuous panic or depression that affects the ability to function independently, appropriately, and effectively. Here, the Veteran's peristent negative emotions do not more nearly approximate the 70 percent symptom criteria because the totality of the evidence does not show the Veteran is in a near-continuous state of being unable to function independently, appropriately, and effectively. The symptoms of detachment from others, avoidance behavior, and social isolation tendences noted in the VA treatment records and examination reports more nearly approximate difficulty in establishing and maintaining effective relationships but not an inability to do so or total social impairment. Those symptoms also do not cause a significant impairment in occupational functioning. The evidence shows the Veteran does maintain some degree of relationship with limited family members, goes to church, has participated in group therapy, and is able to interact appropriately with his coworkers and supervisors. The totality of the evidence shows that the symptoms of intrusive thoughts, hypervigilance, and exaggerated startle response also do not cause the degree of occupational and social impairment contemplated by the 70 percent criteria or higher. Those symptoms could also be considered as similar to panic attacks more than once a week, which is a symptom listed at the 50 percent criteria. The Veteran is not completely unable to establish or maintain effective relationships and the evidence does not show significant occupational impairment. The symptom of poor concentration is akin to impairment of short- and long-term memory with ancillary effects of forgetting to complete tasks or impaired judgement listed at the 50 percent rating criteria. The evidence does not show that symptoms of poor concentration caused significant impairment in the Veteran's occupational functioning based on the Veteran's report; and any social impairment from that symptom does not exceed social impairment with reduced reliability and productivity or difficulty in establishing and maintaining effective work and social relationships. The symptoms of change in appetite and muscle tension also do not more nearly approximate the criteria for an evaluation higher than 50 percent. The available evidence does not show that the change in appetite and muscle tension impact the Veteran's occupational functioning, and his social functioning overall approximates the 50 percent criteria. To summarize, the Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The level of impairment caused by the Veteran's symptoms also more closely approximates the level associated with a 50 percent rating. Although the evidence does document some symptoms contemplated by a 70 percent ratingsymptoms of suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), difficulty adapting to stressful circumstances (such as a worklike setting)the degree of impairment from those symptoms more nearly approximates occupational social impairment with reduced reliability and productivity. Those symptoms do not cause occupational and social impairment with deficiencies in most areas. As discussed, the evidence does not show any significant occupational impairment due to the service-connected depressive disorder. The Veteran's judgment and thinking were regularly assessed as intact on mental status examination, and the Veteran maintains some relationships. Regarding the impaired impulse control in particular, although the Veteran described road rage incidents and shouting/cursing at others, there is no evidence of periods of violence and the Veteran regularly denied any relevant legal or behavioral history. Also, though the Veteran has difficulty adapting to stressful circumstances, that does not appear to significantly affect his occupational functioning. The Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximate the symptoms associated with a 50 percent rating with occupational and social impairment with reduced reliability and productivity. The February 2021 examiner reported the Veteran had intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. That symptom is specifically contemplated by the 100 percent rating criteria, but Dr. JG concluded overall that the resulting impairment more nearly approximated the 70 percent criteria. To the extent Dr. JG found the Veteran was intermittently unable to perform activities of daily living, including maintenance of minimal personal hygiene, the totality of the evidence does not show the severity and duration of that symptom more nearly approximates the degree of occupational and social impairment contemplated by the 70 percent rating criteria or higher. The Veteran has maintained regular employment despite any intermittent impairment in hygiene, and he reported to Dr. JG he was generally successful at work. The available VA and private records do not document personal hygiene issues. Dr. JG also did not specifically describe neglect of minimum personal hygiene. Dr. JG only described intermittent failures to independently and consistently follow up with basic "self-cares," errands, chores, or obligations. Dr. JG did not describe an inability to maintain minimal personal hygiene and did not elaborate on the meaning of self-cares. During those periods, the Veteran relied on his wife to identify lapses, help motivate him, and to take on additional responsibility for his needs. As a result, the Veteran felt he was socially impaired in his ability to meet his responsibilities as a family member or friend. The Board concludes the symptom severity more nearly approximates social impairment with reduced reliability and productivity and difficulty establishing and maintaining effective relationships, but not an inability to do so or total social impairment; and, minimal impairment in occupational functioning that is more consistent with the 50 percent rating criteria. In sum, the criteria for an initial 50 percent evaluation are met and the Veteran's claim is partially granted. The preponderance of the evidence is against a finding that the depressive disorder warrants an evaluation higher than 50 percent. 4. Entitlement to an initial compensable evaluation for bilateral hearing loss prior to January 15, 2019. The Veteran seeks an initial compensable evaluation for hearing loss prior to January 15, 2019. He is in receipt of a 10 percent rating effective January 15, 2019. The latter stage is addressed the Remand section below. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The evidence of record does not show that the hearing loss disability meets the criteria for an initial compensable evaluation. A December 2012 VA examination documents the Veteran's report of impairment in his ability to communicate due to hearing loss, and that he needed to ask others to repeat themselves. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: December 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 30 65 60 47.5 96 LEFT 35 40 60 65 50 96 The Veteran submitted private audiology records dated March 2014 through June 2014 that include audiometric testing results, but do not include speech recognition scores based on testing using the Maryland CNC test. Those results include pure tone thresholds showing an exceptional pattern of hearing loss in the left ear, but not in the right ear. A speech recognition score is not required to evaluate hearing loss when an exceptional pattern of hearing loss is shown. For the right ear, the lack of a Maryland CNC score renders the 2014 findings inadequate for rating purposes. The left ear findings are as follows: March 28, 2014 HERTZ 1000 2000 3000 4000 Avg CNC LEFT 60 70 75 80 71 X Application of those values to Table VIA yields a Level VI rating in the left ear. April 17, 2014 HERTZ 1000 2000 3000 4000 Avg CNC LEFT 60 70 75 75 70 X Application of those values to Table VIA yields a Level VI rating in the left ear. May 6, 2014 HERTZ 1000 2000 3000 4000 Avg CNC LEFT 60 70 70 70 68 X Application of those values to Table VIA yields a Level V rating in the left ear. May 22, 2014 HERTZ 1000 2000 3000 4000 Avg CNC LEFT 70 65 55 60 63 X Application of those values to Table VIA yields a Level V rating in the left ear. August 2014 VA treatment records document that the Veteran had noticed a sharp decrease in his hearing acuity in the left ear in 2014, but that the hearing loss had stabilized. The VA treatment records do not contain audiometric testing results but do document the Veteran used hearing aids. In March 2017, the Veteran wrote that he had been issued hearing aids and had to look at a person to understand what they were saying. Based on the evidence above, an initial compensable evaluation for the Veteran's bilateral hearing loss is not warranted. Prior to January 15, 2019, at worst the Veteran had Level I hearing loss in the right ear and Level VI hearing loss in the left ear. Application of those values to Table VII yields a noncompensable evaluation. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the testimony of difficulty hearing others speak. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable initial rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure is remanded. This issue is remanded for a VA addendum opinion that adequately addresses all appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). VA obtained a medical examination and opinion in June 2015, but the opinion failed to address all theories of entitlement. The 2015 examiner opined that hypertension was not caused or aggravated by non-service-connected atrial fibrillation, but did not address whether hypertension was etiologically related to conceded in-service herbicide exposure. Hypertension is not one of the conditions presumed due to herbicide exposure under 38 C.F.R. § 3.307, 3.309; however, the Veteran may still bring a direct claim. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The 2018 IOM report provides evidence in support of an etiological relationship between diagnosed hypertension and the conceded in-service exposure to herbicides. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA addendum opinion is required. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 2. Entitlement to service connection for residuals of a nasal injury is remanded. This issue is remanded for a VA examination. VA's duty to assist includes providing a medical examination and opinion when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86 (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Veteran asserts that he injured his nose in a vehicle accident during his period of active service. He reports he had nasal reconstruction surgery, but those records are not available. In November 1970, shortly after separation from service, the Veteran sought dental treatment. A February 1971 VA dental rating record notes the Veteran claimed he had missing teeth due to an accident when he was riding a turret and was thrown into the gun shield and broke his tooth. VA medical records from February 1971 confirm the present of a broken tooth. At the March 2021 hearing, the Veteran testified that the injury occurred when he was out on maneuvers during his combat tour in Vietnam. The Veteran's military occupational specialty (MOS) was light artillery crewman and he served on the ground in Vietnam. His competent and credible lay evidence of being in combat is consistent with the time, place, and circumstances of his service. As such, the Veteran is entitled to the combat presumption, which provides that if a veteran engaged in combat with the enemy, his or her lay reports will be sufficient to establish the occurrence of an event or injury during combat as long as such reports are consistent with the circumstances, conditions, or hardships of such service. This is true even if there is no official record of the reported incident unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304 (d). This presumption also extends to a combat veteran's reports of experiencing a permanent disability beginning at the time of injury during combat. Reeves v Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012). Here, the Veteran's report of the in-service nasal injury is consistent with his military occupation specialty and combat service, therefore the combat presumption applies. The Veteran is competent to testify to the residuals of that injury and VA treatment records dated August 2014 document a history of septoplasty 30 years prior. There is an indication that current residuals of a nasal injury are directly related to the Veteran's period of combat service, therefore VA must obtain an examination and opinion. On remand, the Veteran should be given the opportunity to identify or submit any private medical records related to his prior septoplasty. If identified, VA should undertake reasonable efforts to obtain the private records. 3. Entitlement to service connection for a heart disorder, to include as secondary to herbicides and/or hypertension is remanded. This issue is remanded to clarify the nature and etiology of all currently present heart disorders. Available VA and private medical records only show a diagnosis of atrial fibrillation, most recently demonstrated on a January 2019 private Doppler study and March 2019 private echocardiogram. At the March 2021 hearing, the Veteran's representative asserted that a June 2015 echocardiogram showed ischemic heart disease; however, review of that record shows that the indication for the study was ischemic heart disease in the context of the Veteran's claim for benefits but the summary of the results and a June 2015 VA examiner's interpretation of the results only yielded a diagnosis of atrial fibrillation. None of the available records document a diagnosis of ischemic heart disease. VA obtained a medical examination in June 2015, and that examiner noted the diagnosis of atrial fibrillation but did not provide an opinion on the etiology of the atrial fibrillation. VA erred by failing to obtain an opinion on whether atrial fibrillation was directly related to the Veteran's period of service, to include as due to herbicide exposure. Thus, remand for an opinion is required. The 2015 VA examiner did provide a medical opinion on the etiology of hypertension, and noted that hypertension was known to cause some heart conditions and that the Veteran's hypertension predated the onset of the atrial fibrillation. The 2015 examiner's findings raise a theory of entitlement to service connection for atrial fibrillation as secondary to hypertension. On remand, VA should also obtain an addendum opinion regarding whether the diagnosed atrial fibrillation is caused or aggravated by hypertension. In this regard, the claim of entitlement to service connection for atrial fibrillation is inextricably intertwined with the pending claim of entitlement to service connection for hypertension. Remand is required pending readjudication of the underlying service connection claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). 4. Entitlement to service connection for sleep apnea, to include as secondary to residuals of a nasal injury and/or a heart disorder is remanded. This issue is remanded to obtain a medical examination and opinion, and because it is inextricably intertwined with other claims pending on appeal. VA had not obtained a medical examination or opinion for this issue, but one is required. As discussed, the Veteran is afforded the combat presumption with regard to his reported in-service nasal injury. A March 2015 private sleep study shows a diagnosis of obstructive sleep apnea. The Veteran asserts that sleep apnea is either a residual of the in-service nasal trauma and subsequent septoplasty, or caused or aggravated by his heart disorder. See May 2015 Report of General Information; see March 2021 hearing testimony. The evidence demonstrates an in-service event, a current diagnosis, and an indication that the current diagnosis may be related to the in-service event. Thus, VA has a duty to obtain an examination and opinion. This issue is also inextricably intertwined with the pending claims of entitlement to service connection for residuals of a nasal injury and a heart disorder. Entitlement to secondary service-connection for sleep apnea is also remanded for readjudication of the underlying service-connection claims. 5. Entitlement to service connection for a chronic respiratory disorder is remanded. This issue is remanded to obtain outstanding treatment records from the Veteran's period of active service. 38 C.F.R. § 3.159(c)(1); Bell v. Derwinski, 2 Vet. App. 611 (1992). An April 1969 STR reports the Veteran had an upper respiratory infection in basic training and the disposition was admitted to the William Beaumont Army Hospital, but there are no records from the period of hospitalization for the upper respiratory infection in the claims file. On remand, VA should undertake all necessary development to obtain the outstanding federal records from the William Beaumont Army Medical Center in El Paso related to the Veteran's 1969 hospitalization. Remand is also required to secure a VA examination and opinion, as none is of record. The STRs do document hospitalization for an upper respiratory infection in April 1969, therefore there is an in-service event. March 2014 private treatment records document the Veteran had a long history of allergic rhinosinusitis. Private treatment records through 2018 also document multiple episodes of upper respiratory infections. In February 2018, the Veteran wrote that he had a chronic respiratory condition with intermittent, acute exacerbations. The evidence shows a current diagnosis, and in-service event, and an indication that a respiratory disorder may have had onset during the Veteran's period of service. Thus, remand is required to obtain a VA examination and opinion to ascertain the nature and etiology of the claimed respiratory disorder. 6. Entitlement to service connection for a back disorder is remanded. This issue is also remanded to obtain a VA examination and opinion. Private treatment records dated February 2016 document a diagnosis of thoracic disc degeneration. At the March 2021 hearing, the Veteran reported he also injured his back in the in-service accident when he was on maneuvers. The Veteran is afforded the combat presumption for the in-service back injury, therefore there is an in-service event. The Veteran is also competent to report back chronic symptoms since an in-service onset, however the Board makes no finding regarding the credibility of the Veteran at this point. Overall, there is a diagnosis, an in-service event, and an indication that a back disorder may be related to the Veteran's period of service. On remand, VA must obtain an examination and opinion on the etiology of the claimed back disorder. 7. Entitlement to an evaluation higher than 10 percent on and after January 15, 2019 is remanded. This issue is remanded to obtain an examination to determine the current severity of the hearing loss disability. VA's duty to assist includes obtaining evidence necessary to substantiate the claim, which may include a thorough and contemporaneous medical examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121, 124 (1991). At the March 2021 hearing, the Veteran asserted his hearing has worsened since he was last examined in January 2019. Thus, remand for a current examination is required. On remand, VA should also obtain the Veteran's updated VA treatment records from 2018 onward as they may be relevant, and the Veteran appears to receive regular VA care. 38 C.F.R. § 3.159; Dunn v. West, 11 Vet. App. 462 (1998). The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records from the William Beaumont Army Hospital in El Paso from April to May 1969 related to the Veteran's hospitalization for a respiratory disorder. 2. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment from 2018 onward. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Specifically request the Veteran provide information related to his nasal septoplasty. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the claimed hypertension from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that hypertension is etiologically related to in-service exposure to Agent Orange. (b.) The examiner must specifically address the 2018 National Academy of Sciences (NAS)/ Institute of Medicine (IOM) update that now shows hypertension was upgraded to the category of "sufficient" evidence of an association. 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. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the nature and etiology of residuals of a nasal injury. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) Determine all residuals of the claimed in-service nasal injury. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that residuals of a nasal injury had onset in, or is otherwise related to, active military service. (c.) The examiner is instructed to accept as fact the Veteran's report that he was riding a turret and was thrown into the gun shield despite the lack of a notation of the injury in the STRs. (d.) The examiner's attention is also directed to the Veteran's November 1970 claim for benefits, and a February 1971 VA dental record documenting the Veteran's report of injury to the face in service with evidence of a broken tooth. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed heart disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) Clarify all heart disorders that have been present at any time since May 2015. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a heart disorder had onset in, or is otherwise related to, active military service. (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a heart disorder is due to exposure to Agent Orange regardless of whether it is a condition presumed to be related to Agent Orange. (d.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a heart disorder is caused or aggravated by hypertension. 7. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his sleep apnea. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is related to active military service, to include as a residual of the reported in-service nasal injury and subsequent septoplasty. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is caused or aggravated by a heart disorder. (c.) The examiner is instructed to accept as fact the Veteran's report that he was riding a turret and was thrown into the gun shield despite the lack of a notation of the injury in the STRs. 8. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed respiratory disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a chronic respiratory disorder had onset in, or is otherwise related to, active military service. (b.) The examiner must specifically address 1) The STRs document the Veteran was hospitalized for an upper respiratory infection in April 1969; 2) a March 2014 private treatment record noting a long history of allergic rhinosinusitis; 3) the VA and private medical records documenting multiple episodes of upper respiratory infection during the appeal period; and 4) the Veteran's assertion that a chronic respiratory disorder began in service, and he has had intermittent, acute episodes since that time. 9. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a back disorder had onset in, or is otherwise related to, active military service. (b.) The examiner is instructed to accept as fact the Veteran's report that he was riding a turret, was thrown into the gun shield, and hurt his back despite the lack of a notation of the injury in the STRs. (c.) The examiner must specifically address 1) the Veteran's assertion that he has had recurrent back pain since the in-service back injury and; 2) private treatment records dated February 2016 documenting a diagnosis of thoracic disc degeneration. 10. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected bilateral hearing loss disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith 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.