Citation Nr: 22016476 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-26 382 DATE: March 22, 2022 ORDER Entitlement to service connection for PTSD is denied. The issue of entitlement to service connection for a dental condition, to include Tooth Number 8, has been withdrawn. The issue of entitlement to service connection for obesity has been withdrawn. The issue of entitlement to service connection for a recurrent tonsillitis has been withdrawn. The issue of entitlement to service connection for a throat condition has been withdrawn. REMANDED Entitlement to service connection for coronary artery disease (CAD), status post myocardial infarction (MI) with congestive heart failure (CHF), including as due to service-connected bilateral knee disability, is remanded. Entitlement to service connection for hypertension (HTN) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for peripheral neuropathy (PN), right upper extremity (RUE) is remanded. Entitlement to service connection for PN, LUE, is remanded. Entitlement to service connection for PN, LLE, is remanded. The issue of entitlement to service connection for PN, RLE, is remanded. Entitlement to service connection for obstructive sleep apnea syndrome (OSA) is remanded. Entitlement to service connection for ventricular arrhythmia status post-automatic implantable cardioverter/defibrillator (AICD), is remanded. Entitlement to service connection for an acquired mental disorder other than PTSD, to include generalized anxiety disorder, and including as due to a service-connected disability, is remanded. Entitlement to a total rating based individual unemployability (TDIU) due to service-connected disability is remanded. FINDING OF FACT At the Board hearing, on the record, the Veteran withdrew the issues of entitlement to service connection for a dental condition, including Tooth number 8; obesity; recurrent tonsillitis; and, a throat condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304(f). 2. The criteria for the Veteran's withdrawal of the issues of entitlement to service connection for a dental condition, including Tooth Number 8; obesity; recurrent tonsillitis; and, a throat condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from August 1978 to August 1981, and active service in the USAF from July 1982 to March 1989. The Veteran has two perfected appeal streams: one from a January 2016 rating decision, and the other from a November 2016 rating decision. See 01/22/2016 and 11/26/2016 Rating Decisions. In February 2021 the Veteran testified before the undersigned Veterans Law Judge via a virtual Board hearing. A transcript of the hearing is of record. See 02/03/2021 Hearing Transcript. 1. Entitlement to service connection for PTSD is denied. General Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are particular requirements in 38 C.F.R. § 3.304(f) for establishing PTSD. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010) ("Simply put, while section 3.303 mandates that there be a link between a current disability and military service, section 3.304(f) sets forth the evidence necessary, in the context of claims for PTSD disability compensation, to establish that link."). Entitlement to service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and, credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125 (requiring PTSD diagnoses to conform to the Diagnostic and Statistical Manual of Mental Disorders-5 (DSM-5). Discussion While the Veteran's VA outpatient records note a personal history of PTSD, there is no evidence of an offical diagnosis of PTSD from a medical provider. Neither he nor his attorney dispute that fact. Hence, the Board is constrained to deny the claim. 38 C.F.R. §§ 3.303, 3.304. Should a diagnosis be rendered in the future the Veteran may reapply for service connection at that time. 2. The issues of entitlement to service connection for a dental condition, a condition of tooth number, obesity, recurrent tonsillitis, and, a throat condition are withdrawn. Applicable Legal Standard 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 veteran or by his or her authorized representative. Id. Discussion At the February 2021 Board hearing, on the record, the Veteran, with the concurrence and advice of his attorney, withdrew his appeal of the issues of entitlement to service connection for a dental condition; a condition of tooth number; obesity; recurrent tonsillitis; and, a throat condition. See Hearing Transcript, P. 2, 4. The undersigned fully explained the ramifications of the withdrawal, and the Veteran orally affirmed his understanding. Id.; DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration of those issues. Accordingly, the Board does not have jurisdiction to review the appeal of them, and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for CAD, status post MI with CHF, including as due to service-connected bilateral knee disability, is remanded. The Veteran's service treatment records note that he worked in aircraft maintenance, the performance of which exposed him to various toxins, to include hydrazine. The Veteran asserts that his longterm exposure to those various toxins is the etiology for all of his claimed disabilities, especially his heart disease. In support of his asserted basis, his attorney has submitted a private opinion of Victoria A. Cassano, M.D. See 02/02/2021 Medical Treatment--Government Facility. Dr. Cassano reviewed the Veteran's claims file and opined that it is at least as likely as not that the Veteran's heart disease is due to J-Point elevation and HTN which was present during his active service; and, that his PN is due to his in-service exposure to various toxins while performing his duties. She also noted that a pulmonary disorder is due to his heart disease. Dr. Cassano's opinion was submitted under waiver of initial Agency of Original Jurisdiction (AOJ) review and consideration. See 38 C.F.R. § 20.1305(c). The Board notes, however, that the Veteran did not undergo VA examinations as part of the adjudication of the heart and heart-related claims, see generally 38 C.F.R. § 3.159(c)(4), so there is no VA opinion on record. In addition to Dr. Cassano's opinion, there also in an opinion from Christopher Hoyte, M.D., a non-VA physician who treated the Veteran for his heart disease. Dr. Hoyte noted some of the medical treatises that address the potential relationship between heart disease and exposure toxins, but he opined that the science is not yet firm enough for him to opine beyond finding that it's possible. See 09/09/2015 Non-Government Facility. The Board notes that such an opinion is equivocal, as possible also connotes that it is not possible, which falls short of probable. Cf. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions expressed in terms of "may" also implies "may" or "may not" and are speculative). Given the complexity of the matters involved, and the fact that Dr. Hoyte noted the inherent uncertainty in this area, a remand for a VA medical review is indicated. 2. Entitlement to service connection for HTN is remanded. This issue is intertwined with 1, above. Further, a medical professional must review the Veteran's service treatment records (STRs) and opine on whether he manifested HTN during his active service. While Dr. Cassano indicated that it was, it does not appear that the specific requirements as noted in the rating schedule were considered. 3. Entitlement to service connection for bilateral hearing loss is remanded. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The AOJ arranged a fee-basis audio examination to assist the Veteran, but he declined to report. See 09/23/2015 C&P Exam. His VA outpatient records contain a March 2016 audiology consult that notes that his hearing in both ears were within normal limits, and that his speech recognition was excellent. See 06/08/2016 CAPRI. Unfortunately, the audiogram is not visible in the entry, as a special tool must be used to render it visible. Hence, the record is not complete for appellate review purposes. The AOJ must obtain the audiogram or cause it to be visible in the Veteran's treatment records. 4. Entitlement to service connection for tinnitus is remanded. This is issue is intertwined with the hearing loss claim. 5. Entitlement to service connection for PN of the bilateral UEs and LEs is remanded. See 1, above. 6. Entitlement to service connection for OSA is remanded. In addition to asserting a connection with exposure to toxins, the Veteran also asserts that his OSA is connected to his obesity, which he asserts is due to his inability to exercise because of his bilateral knee disability. He also asserts that he was obese during his active service. The Board notes that the Veteran was placed on a weight control program during his active service. The Board notes further, however, that military maximum weight standards may not necessarily be synonymous with medically diagnosed obsesity. Hence, medical review is needed. 7. Entitlement to service connection for ventricular arrhythmia, status post-ACID is remanded. See 1, above. 8. Entitlement to service connection for an acquired mental disorder other than PTSD is remanded. The Veteran's PTSD claim is deemed to have included all acquired mental disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009). His medical records note a diagnosis of generalized anxiety disorder, and one medical provider noted that it is due to the after-effects of his heart disability. The requirements for proof of a PTSD claim are more rigorous than for other acquired mental disorders. Hence, this issue must be addressed on remand. 9. Entitlement to a TDIU is remanded. This claim is intertwined with all of the above claims. The matters are REMANDED for the following action: 1. The AOJ shall either obtain a copy of the March 2016 audiology report, including the associated audiogram, or cause the audiogram to be visible in the Veteran's VA outpatient records. 2. The AOJ shall also ensure that all related treatment records, VA and non-VA generated since 2020 are obtained and made a part of the claims file. 3. After all of the above is complete, the AOJ shall arrange a medical review of the claims file by an appropriate physician. Although not directing such, it would be helpful to the Board if the claims file is sent to a physician with training and experience in toxic substances, including hydrazine, and any disease associated with exposure to those toxins. The Board repeats that it is not directing that such a specialist conduct the review. Inform the physician that he/she is free to consult with any specialist which he/she believes will assist in providing the opinions requested below, provided that the details of any consultation are included in the examination/review report. Inform the physician further that it is critical that he/she avoid conclusory opinions. Full and complete explanations must be provided. Full explanations must directly address the assertions of the Veteran, the medical literature and medical studies submitted, and the opinions of Dr. Cassano and Dr. Hoyte. The physician's explanations must indicate agreement or disagreement with the private medical opinions and cited medical studies, and address how they may or may not apply to the Veteran's individual case. 4. Ask the physician to review the claims file and to opine on whether it is at least as likely or not (at least a 50 percent probability) that the Veteran manifested HTN during his active service? If so, then explain how that does or does not relate to or impact his other claimed disabilities. 5. Ask the physician to opine on whether it is at least as likely or not (at least a 50 percent probability) that either or all of the Veteran's disabilities had onset in active service or is otherwise causally related to his active service, to include as due to his in-service exposure to various toxins, including hydrazine. If the physician opines that either or all of the Veteran's disabilities are not due to his in-service exposure to various toxins, including hydrazine, then is it at least as likely as not that either or all of his disabilities are due to his service-connected knee disability; specifically, as due to the J-Factor caused by his arthritis? If the answer is, no, then is it at least as likely as not that the service-connected knee disability via an arthritis-caused J-Factor has worsened either or all of the Veteran's disabilities? Inform the physician that any worsening need not be permanent or chronic. Instead, any flare-up in either of the claimed disabilities that impair earning capacity which is due the knee disability will be adequate for a positive opinion. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. 6. The STRs note that the Veteran was placed on a Weight Control Program during his USAF Service (see 02/06/2015 STR-Med, 1st Entry, P. 45). Ask the physician to review the claims file and to opine on whether the Veteran met the medical criteria for obesity during his active service. If the answer is no, then reference and discuss the fact that his VA outpatient records note that he is obese. Is it at least as likely as not that the Veteran's obesity is causally related to an inability to exercise as a result of knee disability? If the answer is, yes, then is it at least as likely as not that the Veteran's OSA, or any other claimed disability is due to obesity? Concerning any of the claimed disabilities, if the physician notes or discusses risk factors for any disease, he or she must full discuss the Veteran's specific risk factors within the framework of the evidence of record. 7. The AOJ shall arrange a mental examination of the Veteran by an appropriate clinician. Ask the clinician to determine if the Veteran has an acquired mental disorder, to include a generalized anxiety disorder. If so, then is it as likely as not (at least a 50 percent probability) that it is due to or had onset in active service? If not, is it at least as likely as not caused or aggravated by one of the Veteran's disabilities? If so, which one? A full explanation must be provided. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. 8. After all of the above is complete, the AOJ shall readjudicate the TDIU claim as appropriate. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.