Citation Nr: 22016253 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-28 999 DATE: March 21, 2022 ORDER Entitlement to service connection for a back disability is dismissed. Entitlement to service connection for a right ankle disability is dismissed. Entitlement to service connection for a balance condition is dismissed. Entitlement to service connection for a condition of the upper and lower teeth is dismissed. Entitlement to service connection for a bilateral lung condition is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction secondary to a heart condition or hypertension is remanded. Entitlement to service connection for a bilateral eye condition is remanded. Entitlement to service connection for headaches is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. At the November 2021 Board hearing, on the record, the Veteran withdrew his appeal of the issues of entitlement to service connection for a back disability, right ankle disability, balance condition, and condition of the upper and lower teeth. 2. The evidence of record persuasively weighs against finding that the Veteran has had a bilateral lung condition at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims of entitlement to service connection for a back disability, right ankle disability, balance condition, and condition of the upper and lower teeth by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a bilateral lung condition are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to February 1994, followed by service in the Navy Reserve. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision which denied service connection for headaches, a bilateral ankle disability, bilateral hearing loss, tinnitus, a balance condition, bilateral eye condition, a condition of the upper and lower teeth, a heart condition, hypertension, a bilateral lung condition, erectile dysfunction, and a back condition. The Veteran filed a timely notice of disagreement. In May 2016, VA issued a Statement of the Case (SOC) and the Veteran filed a timely VA Form 9 in June 2016. On this form, the Veteran identified the May 2016 SOC and checked "I want to appeal all of the issues listed on the statement of the case and any supplemental statement of the case that my local VA office sent to me." Under the section to explain why he thought VA decided his case incorrectly, the Veteran listed bilateral hearing loss, tinnitus, a balance condition, bilateral eye condition, a condition of the upper and lower teeth, a heart condition, hypertension, a bilateral lung condition, erectile dysfunction, a back condition, and a right ankle condition. The Veteran declined an optional Board hearing. The Board notes the ambiguity in the June 2016 VA Form 9 but finds that there is a perfected appeal in the matter of entitlement to service connection for headaches and a left ankle disability. Therefore, the Board has added these issues to the appeal. In April 2018, VA issued a supplemental statement of the case (SSOC) for the issues of bilateral hearing loss, tinnitus, a balance condition, bilateral eye condition, a condition of the upper and lower teeth, a heart condition, hypertension, a bilateral lung condition, erectile dysfunction, a back condition, and a right ankle condition. The Veteran filed a second VA Form 9 in May 2018 in which he identified the April 2018 SSOC, checked "I have read the statement of the case and any supplemental statement of the case I received. I am only appealing these issues," but then listed all issues included on the SSOC, including bilateral hearing loss, tinnitus, a balance condition, bilateral eye condition, a condition of the upper and lower teeth, a heart condition, hypertension, a bilateral lung condition, erectile dysfunction, a back condition, and a right ankle condition. He requested an optional Board hearing. In November 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing on the issues of entitlement to service connection for bilateral hearing loss, tinnitus, a balance condition, bilateral eye condition, a condition of the upper and lower teeth, a heart condition, hypertension, a bilateral lung condition, erectile dysfunction, a back condition, and a right ankle condition. A copy of the transcript is of record. Reconsideration of Claims If, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156(a). Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § 3.156(c)(i). In a March 1995 rating decision, the RO denied service connection for a heart condition on the basis that service treatment records were negative for complaints of or treatment for a chest condition (claimed as a chest murmur). In a June 2000 rating decision, the RO denied service connection for bilateral hearing loss on the basis that the Veteran's claim was not well-grounded, as the evidence did not show a hearing loss disability incurred in or aggravated by service. Evidence of record at the time of the prior denials included the Veteran's service treatment records from March 1986 to October 1993. Subsequently, service treatment records from the Veteran's Reserve service from January 1995 to September 2007, including a January 1995 entrance examination noting a heart murmur, and periodic audiologic examinations, were associated with the claims file. The Board notes that service treatment records which are relevant to the Veteran's claims for a heart condition and bilateral hearing loss were associated with the claims file after the March 1995 and June 2000 decisions but existed at the time of the rating decisions; thus, the claims must be reconsidered. However, VA adjudicated the claims under the standard for reopening claims, rather than reconsidering whether service connection was warranted. See March 2016 SOC. Accordingly, the Board finds that the claims must be reconsidered under 38 C.F.R. § 3.156(c)(i). Withdrawn Claims 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for a balance condition. 4. Entitlement to service connection for a condition of the upper and lower teeth. An appeal may be withdrawn as to any on 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 an appellant or by his or her authorized representative. In this case, on the record at the Board hearing, the Veteran withdrew his appeal of the issues of entitlement to service connection for a back disability, right ankle disability, balance condition, and condition of the upper and lower teeth. See 11/01/2021 Hearing Transcript. The undersigned explained the significance of his withdrawal to the Veteran, and the Veteran acknowledged his understanding. Id.; see also Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018) (adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011)). The withdrawal means that there no longer is an issue of law or fact for the Board to address. Hence, the issues are dismissed. Service Connection 5. Entitlement to service connection for a bilateral lung condition. The Veteran contends that service connection is warranted for a bilateral lung condition. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current bilateral lung condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). On examination in May 2016, the Veteran reported he was diagnosed with asthma as a child but grew out of it. He denied any problem with his lungs or having a lung condition. Imaging studies of the chest were normal. The examiner noted service treatment records which were positive for asthma as a child and show a May 1987 complaint of sneezing, runny nose, and coughing for two days with a diagnosis of coryza, but that the record was otherwise silent for frequent colds, asthma, or shortness of breath. The examiner additionally noted that the were no records documenting a chronic lung or pulmonary condition due to service, and that the physical examination and imaging study were normal. Thus, the examiner opined that a lung condition was less likely than not incurred in or caused by service. During the November 2021 Board hearing, the Veteran testified as to the practice of fire drills and possible exposure to asbestos during service. He indicated that he first began to have trouble breathing during service but did not seek treatment during service, within one year of service, and had not sought treatment since service. He indicated that if he became congested, he would use over-the-counter Afrin. Private treatment records dated from 2011 to 2015 and in 2021 are also silent for lung or pulmonary complaints. While the Veteran believes he has a current lung condition, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, including the May 2016 VA examination report, which reflects the Veteran does not have a current lung condition. The Board acknowledges that the Veteran reported using an over the counter medication, Afrin, if he became congested. There is no competent medical evidence, however, establishing that Afrin is used to treat lung or respiratory problems. The Board also acknowledges that there appear to be outstanding treatment records. However, as the Veteran indicated that he has not sought treatment at any point for his claimed lung disability, remanding this claim to obtain those records would likely not result in any benefit to the Veteran and only serve to delay adjudication of this claim. In sum, the Board finds that the evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, --- F.4th ----, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). The claim of entitlement to service connection for a bilateral lung condition is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bilateral hearing loss and tinnitus at this time. The Veteran was afforded a VA examination in May 2016. The examiner found that the Veteran had normal hearing upon audiologic testing but opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of service, noting "[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. Although definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." The Board finds that the etiological opinion of the May 2016 VA examination is inadequate. While the examiner indicated that "there 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," the examiner did not address the apparently qualifying or contradictory statements in the cited study or state that the study or current scientific evidence conclusively rules out the possibility of delayed onset hearing loss. Finally, during the November 2021 Board hearing, the Veteran testified that he has trouble hearing others during conversations. In light of the nearly six years since his last audiologic examination and the evidence of record that suggests his hearing may have worsened, the Board finds that a remand is warranted to obtain a new VA examination to assess the current severity of the Veteran's hearing loss, to include whether he has hearing loss for VA purposes. 3. Entitlement to service connection for a heart condition is remanded. 4. Entitlement to service connection for hypertension is remanded. During the November 2021 Board hearing, the Veteran identified relevant outstanding private treatment records. Specifically, he states that he sought treatment for chest pain and hypertension immediately after service from Drs. Mann, Rios, and Moncayo. Subsequent to the Board hearing, the Veteran submitted VA Forms 21-4142 for Drs. Healey and Moncayo, with some records attached. It appears that VA is acting on these submissions. See December 2021 VA letter. However, other records from immediately after the Veteran's active service, to include those mentioned during the Board hearing, have not been associated with the record. The Board also notes that letters dated in October 2003 and August 2007 associated with the Veteran's Reserve service treatment records show treatment for hypertension from Preventative Medicine of Southeast Texas. A remand is required to allow VA to obtain authorization and request these records. 5. Entitlement to service connection for erectile dysfunction secondary to a heart condition or hypertension is remanded. The Veteran contends that his erectile dysfunction is secondary to use of medications to treat his heart condition and hypertension. He does not contend is it related to service. Because a decision on the remanded issues of of entitlement to service connection for a heart condition and hypertension could significantly impact a decision on the issue of service connection for erectile dysfunction, the issues are inextricably intertwined. A remand of the claim of service connection for erectile dysfunction is required. 6. Entitlement to service connection for a bilateral eye condition is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a bilateral eye condition because no VA examiner has opined whether the Veteran has a bilateral eye condition, claimed as vision difficulties and dry eyes, that was incurred in or is otherwise related to service. 7. Entitlement to service connection for headaches is remanded. 8. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ankle disability is remanded. As discussed above, the Veteran's submission of a VA Form 9 in June 2016 constitutes a timely substantive appeal following the May 2016 SOC and the Board finds that there is a perfected appeal on the issues of entitlement to service connection for headaches and whether new and material evidence has been received to reopen a claim fo entitlement to service connection for a left ankle disability. As VA did not include these issues on the April 2018 SSOC, it is not clear whether the Veteran or his representative realized these issues remained on appeal and they have not been afforded the opportunity to provide arguments on the merits in these matters. Remand is required. The matters are REMANDED for the following actions: 1. Advise the Veteran's representative that the Veteran has a perfected appeal in the matters of entitlement to service connection for headaches and whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ankle disability and invite the representative to present written argument in the matters (affording an appropriate period for response) or request a Board hearing. 2. Ask the Veteran to complete a VA Form 21-4142 for Drs. Mann and Rios, Preventative Medicine of Southeast Texas, and for any other private treatment he received that is related to his claims. Make two requests for the authorized records from the identified providers, unless it is clear after the first request that a second request would be futile. 3. Make two requests for the authorized records from Drs. Healey and Moncayo (see December 2021 VA Forms 21-4142), unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for a VA examination for his claimed hearing loss and tinnitus. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's hearing loss and/or tinnitus (1) began during active service (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 5. Schedule the Veteran for a VA examination for his claimed bilateral eye disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Does the Veteran have an eye disability, to include a vision disability and/or dry eyes, that is at least as likely as not related to service, including the Veteran's lay statements concerning eye strain during service? Provide a rationale to support the opinion(s). 6. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page) An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.