Citation Nr: 22008039 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 11-17 730 DATE: February 11, 2022 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an initial rating in excess of 20 percent for degenerative joint disease, left shoulder, is remanded. Entitlement to an initial rating in excess of 20 percent for degenerative joint disease, right shoulder, is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease, lumbar spine is remanded. Entitlement to initial ratings in excess of 10 percent prior to March 20, 2009, and in excess of 30 percent from May 1, 2010, for left hip arthroplasty, previously rated as degenerative joint disease, left hip, is remanded. Entitlement to initial ratings in excess of 10 percent prior to February 8, 2011, and in excess of 30 percent from April 1, 2012, for right total hip arthroplasty, previously rated as degenerative joint disease, right hip, is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, left knee, is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, right knee, is remanded. The petition to reopen the previously denied claim for entitlement to service connection for an eye condition is remanded. Entitlement to service connection for kidney problems is remanded. Entitlement to service connection for heart problems is remanded. Entitlement to a rating in excess of 10 percent for type II diabetes is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, left upper extremity, is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, right upper extremity, is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, left lower extremity, is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, right lower extremity, is remanded. Entitlement to a compensable initial rating for shrapnel wound scar is remanded. Entitlement to a compensable rating prior to February 13, 2008, and a rating in excess of 10 percent from that date for chloracne is remanded. Entitlement to an initial rating in excess of 10 percent for erectile dysfunction is remanded. Entitlement to a compensable rating for right ear hearing loss is remanded. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active service from October 1966 to October 1968. The Veteran died in February 2015. The appellant is the Veteran's surviving spouse and has been accepted as substitute for purposes of the Veteran's claims pending at the time of his death. In December 2020 decision, the Board denied the appellant's claim for entitlement to dependency and indemnity compensation based on service connection for the cause of the Veteran's death. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court vacated the December 2020 Board decision and remanded the issue for further consideration consistent with a Joint Motion for Remand filed by counsel for the appellant and the VA Secretary. In December 2021, the appellant's representative asked that the Board wait until at least March 29, 2022, to issue a decision as to that separate appeal so that they could obtain and submit additional evidence as to that appeal. Accordingly, the issue of entitlement to dependency and indemnity compensation based on service connection for the cause of the Veteran's death is not currently ripe for Board consideration, and it will be the subject of a future decision, if in order, following expiration of the representative's requested extension of time. 1. Entitlement to service connection for left ear hearing loss is remanded. An August 2008 VA examination revealed a bilateral hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385. In February 2009, a VA examiner opined that the Veteran's left ear hearing loss is less likely than not due to noise exposure in the military because the Veteran's left ear hearing was within normal limits at the time of last examination in service and there was no frequency-specific testing during the year after his separation from service indicating that a left ear hearing loss had manifested to a compensable degree of severity by that time. Under applicable law, the absence of in-service evidence of hearing loss is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran presented competent and credible evidence of in-service acoustic trauma from noise exposure. The February 2009 VA examiner essentially based his negative nexus opinion on the fact that the Veteran's service treatment records do not show an in-service hearing loss and the record does not show a hearing loss within the one-year period following the Veteran's separation from active service. The examiner did not explain why evidence showing a hearing loss during service or within one year of separation from service is required to determine that the Veteran's hearing loss was incurred in active service or is otherwise etiologically related to his active service, to include the reported exposure to noise. The Board therefore finds the February 2009 opinion to be inadequate, and that a remand is required so that an addendum opinion may be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for hypertension is remanded. The Veteran had active service in the Republic of Vietnam during the Vietnam era. He therefore is presumed to have been exposed to herbicide agents during his active service. The National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010, concluded that there is "limited or suggestive" evidence of an association between exposure to herbicide agents and hypertension. In November 2018, hypertension was moved by NAS to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. The NAS's conclusions indicate that the Veteran's hypertension may be directly related to his active service. Given the foregoing, the Board concludes that the threshold for obtaining an opinion has been met. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Therefore, the issue must be remanded so that such an opinion may be obtained. 3. Entitlement to an initial rating in excess of 20 percent for degenerative joint disease, left shoulder, is remanded. 4. Entitlement to an initial rating in excess of 20 percent for degenerative joint disease, right shoulder, is remanded. 5. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease, lumbar spine is remanded. 6. Entitlement to initial ratings in excess of 10 percent prior to March 20, 2009, and in excess of 30 percent from May 1, 2010, for left hip arthroplasty, previously rated as degenerative joint disease, left hip, is remanded. 7. Entitlement to initial ratings in excess of 10 percent prior to February 8, 2011, and in excess of 30 percent from April 1, 2012, for right total hip arthroplasty, previously rated as degenerative joint disease, right hip, is remanded. 8. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, left knee, is remanded. 9. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, right knee, is remanded. Prior to his death, the Veteran was most recently provided examinations as to his service-connected bilateral shoulder, lumbar spine, bilateral hip, and bilateral knee disabilities in February 2009. Those examinations indicate that the Veteran reported severe flare-ups in his shoulder, lumbar spine, hip, and knee symptoms. However, the examiner offered no opinion as to any likely additional functional loss the Veteran may have had during the reported flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Therefore, the Board finds that the issues must be remanded so that a retrospective opinion may be obtained as to the likely additional functional loss the Veteran had during flare-ups at the time of the February 2009 VA examination. 10. The petition to reopen the previously denied claim for entitlement to service connection for an eye condition is remanded. 11. Entitlement to service connection for kidney problems is remanded. 12. Entitlement to service connection for heart problems is remanded. 13. Entitlement to a rating in excess of 10 percent for type II diabetes is remanded. 14. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, left upper extremity, is remanded. 15. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, right upper extremity, is remanded. 16. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, left lower extremity, is remanded. 17. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, right lower extremity, is remanded. 18. Entitlement to a compensable initial rating for shrapnel wound scar is remanded. 19. Entitlement to a compensable rating prior to February 13, 2008, and a rating in excess of 10 percent from that date for chloracne is remanded. 20. Entitlement to an initial rating in excess of 10 percent for erectile dysfunction is remanded. 21. Entitlement to a compensable rating for right ear hearing loss is remanded. 22. Entitlement to a rating in excess of 30 percent for PTSD is remanded. In February 2011, the Veteran identified relevant private and VA treatment records and the record does not show that the AOJ made appropriate efforts to obtain those records. Specifically, the Veteran identified treatment from Dr. A. J. Patel on a VA Form 21-4142 received in February 2011. There is no indication in the record that any action to obtain those records was taken. In addition, the Veteran identified VA treatment at VA medical facilities in Birmingham, Alabama, from January 1998 to the present; in Montgomery, Alabama, from 1992 to the present; in Tuscaloosa, Alabama, from 2005 to the present; and in Tuskegee, Alabama, from 1997 to the present in a VA Form 21-4138 received in February 2011. Although some records from each of those facilities is of records, efforts to obtain the records for the full ranges of dates identified by the Veteran have not been made. A remand is required so that efforts to obtain the identified records. The record also does not include VA treatment records from March 2011 through December 2013. On remand, appropriate efforts must be made to obtain those records. The matters are REMANDED for the following action: 1. Associate with the record any VA treatment records that have not yet been obtained from the VA medical facilities in Birmingham, Alabama, from January 1998 to the present; in Montgomery, Alabama, from 1992 to the present; in Tuscaloosa, Alabama, from 2005 to the present; and in Tuskegee, Alabama, from 1997 to the present. The records obtained should include those for all VA medical facilities dating from March 2011 through December 2013. Document all requests for information as well as all responses in the claims file. If any such records cannot be obtained because they do not exist or further efforts to obtain them would be futile, then the appellant should be notified of such in a manner consistent with 38 C.F.R. § 3.159(e). 2. Ask the appellant to complete a VA Form 21-4142 for Dr. A. J. Patel. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. Document all requests for information as well as all responses in the claims file. If any authorized records cannot be obtained, then notify the appellant of such in a manner consistent with 38 C.F.R. § 3.159(e). 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left ear hearing loss was at least as likely as not (50 percent probability or greater) related to his in-service exposure to noise. The clinician must note that, under applicable law, the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, the fact that there are no audiometric test results showing that the Veteran had in-service hearing loss or hearing loss within one year of his separation from service is not on its own a sufficient basis for determining that the Veteran's left ear hearing loss was not etiologically related to his active service. The clinician's opinion should reflect consideration of whether, given the in-service noise exposure, the evidence establishes that the Veteran's left ear hearing loss was incurred in active service or was otherwise etiologically related to his active service, such as being the delayed result of the in-service noise exposure. See 38 C.F.R. § 3.303(d). 4. Obtain an opinion from an appropriate clinician regarding whether the Veteran's hypertension was at least as likely as not (50 percent or greater probability) related to in-service exposure to herbicide agents. The opinion must discuss the National Academy of Sciences Institute of Medicine's most recent conclusions regarding hypertension and herbicides. Specifically, the opinion must address the changes made in 2018 to Veterans and Agent Orange, which included moving hypertension into the category of "sufficient" evidence of an association with herbicide exposure from its previous classification in the "limited or suggestive" category. See https://www.nationalacademies.org/news/2018/11/vietnam-veterans-and-agent-orange-exposure-new-report. 5. Obtain a retrospective opinion from an appropriate clinician regarding the likely severity of the Veteran's service-connected left shoulder, right shoulder, lumbar spine, left hip, right hip, left knee, and right knee disabilities at the time of the February 2009 VA examinations. The examiner is asked to opine as to whether the Veteran had additional functional loss during flare-ups. The opinion should be based on the evidence of record, to include the Veteran's subjective reports at the VA examinations and in the medical treatment records. The examiner should note that an examination need not be conducted during a flare-up for the functional impairment experienced in such instances to be taken into account. Caselaw and VA guidelines anticipate that examiners will offer opinions on flare-ups based on estimates derived from information procured from relevant sources, including the lay statements of the veteran being examined. If the examiner determines that it is not possible to provide an opinion without speculation even in view of such information, the examiner must provide an explanation of why that is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or a deficiency in the examiner's knowledge. If additional information would allow for an opinion, the examiner should identify the information needed. In other words, a general statement to the effect that there is no basis to offer additional losses of function or motion during a flare-up is not sufficient. In such cases, the examiner should explain why there is no basis for such an opinion. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.