Citation Nr: 22040887 Decision Date: 07/18/22 Archive Date: 07/18/22 DOCKET NO. 20-00 441 DATE: July 18, 2022 ORDER Service connection for hypertension is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for right upper extremity peripheral edema is remanded. Entitlement to service connection for left upper extremity peripheral edema is remanded. Entitlement to service connection for right lower extremity peripheral edema is remanded. Entitlement to service connection for left lower extremity peripheral edema is remanded. Entitlement to an initial compensable rating (higher than 0 percent) for right ear hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's DD Form 214 confirms that he served in the Republic of Vietnam from February 24, 1968 to June 7, 1968. The Board finds (on a non-precedential, facts-found basis) that this evidence establishes herbicide agent exposure. 2. The Veteran's hypertension is reasonably shown to be related to or caused by his active service, to include as due to herbicide exposure. CONCLUSION OF LAW The criteria have been met for service connection (on a presumptive basis) for hypertension. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1966 to April 1970, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2018 and October 2018 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). In November 2018, the Veteran disagreed with these rating decisions. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. §§ 1113, 1116 and 38 C.F.R. §§ 3.307(d), 3.309(e) are met. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2016). The Secretary of the Department of Veterans Affairs has determined that there is no automatic positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 41442 -41449, and 61 Fed. Reg. 57586 -57589 (1996). Service connection for hypertension is granted. The Veteran contends that his hypertension was related to active service, to include his exposure to herbicide agents while serving in Vietnam. Factual Background In a May 2018 VA examination report, the Veteran was diagnosed with hypertension. The Veteran stated that the onset of his hypertension symptoms began in 2010. The VA examiner opined that it was less likely than not that the Veteran's hypertension was proximately due to or the result of his service-connected diabetes mellitus. The rationale was that the Veteran's hypertension predated his diabetes. No nexus opinion concerning aggravation or direct service connection was provided. The Veteran's DD Form 214 confirms that he served in the Republic of Vietnam from February 24, 1968 to June 7, 1968. The Board finds (on a non-precedential, facts-found basis) that this evidence establishes herbicide agent exposure. Analysis Based on the evidence above, although a causal relationship has not been demonstrated through a foregoing VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a "valid medical opinion" is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Hypertension is not one of the diseases listed under 38 C.F.R. § 3.309(e). However, the National Academies of Sciences, Engineering, and Medicine, on November 15, 2018, moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category," indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicide agents, including Agent Orange. See National Academy of Science (NAS) November 2018 update report titled, Veterans and Agent Orange Update 11 (2018). The Board finds the study provided by the NAS, which is made up of experts in the given field of science, is probative evidence that is relevant here. Weighing the available evidence, the Board determines that at the very least, the evidence is evenly balanced for and against ("in relative equipoise") as to whether the Veteran's hypertension is related to active service. Because of this, the Board finds that it is at least as likely as not that the Veteran's hypertension is causally related to active service. Accordingly, the criteria for service connection have been met, and the claim for service connection for hypertension is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. In a January 2018 VA examination report, the Veteran was diagnosed with left ear sensorineural hearing loss and audiology results showed that he had current hearing loss for VA purposes. The VA examiner opined that it was less likely than not that the Veteran's left ear hearing loss was caused by or a result of active service. The rationale was that the Veteran's entrance and separation examination reports were not available for review. In a June 2018 VA examination report, the Veteran was again diagnosed with left ear sensorineural hearing loss and audiology results showed that he had current hearing loss for VA purposes. The VA examiner opined that it was less likely than not that the Veteran's left ear hearing loss was caused by or a result of service. The rationale was that on the Veteran's March 1970 separation examination, he had normal hearing with thresholds too low for any permanent significant shift to have occurred. According to the VA examiner, this was evidence of no permanent auditory damage. While the examiner conceded the Veteran's noise exposure during service, auditory damage and hearing loss were not conceded based on noise alone. The Board notes that an October 2011 study from the American Hearing Research Foundation (AHRF) found that "damage caused by exposure to loud noises in the inner ear may occur long before changes in hearing are perceived." Additionally, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and his current disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board finds that the January 2018 and June 2018 VA negative nexus opinions are inadequate and of minimal probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The requirements for service connection for hearing loss, as defined in 38 C.F.R. § 3.385, do not need to be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. Because of this, a new VA opinion is necessary to determine if the Veteran's left ear hearing loss is related to active service, to include as due to the conceded noise exposure he experienced. 2. Entitlement to service connection for tinnitus is remanded. In a January 2018 VA examination report, the Veteran reported recurrent tinnitus and stated that it began in 2016. He noted that he was exposed to loud noises from rifle fire, artillery fire, mortars, and loud motors during service. The VA examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of active service. The rationale was that the Veteran's reported that his tinnitus began two years prior. In a June 2018 VA examination report, the Veteran reported recurrent tinnitus. The VA examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of active service. The rationale was that the Veteran stated that his tinnitus began post-separation from active service. Additionally, there was no report of tinnitus in his service treatment reports (STRs) or on his March 1970 separation examination. The VA examiner noted that current literature did not support late onset noise-induced tinnitus. The Board finds that the January 2018 and June 2018 VA opinions are inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Noted previously, an October 2011 study from the American Hearing Research Foundation (AHRF) found that "damage caused by exposure to loud noises in the inner ear may occur long before changes in hearing are perceived." Additionally, the VA examiner gave an opinion as to whether the Veteran's service-connected right ear hearing loss caused or aggravated his current tinnitus. Finally, the Board notes that a favorable decision on the claim for service connection for left ear hearing loss being remanded would impact the Veteran's claim for tinnitus. Because of this, the Board finds that these issues are inextricably intertwined, and the appeal is remanded for a new VA opinion. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). 3. Entitlement to service connection for right upper extremity peripheral edema, to include as secondary to diabetes mellitus, is remanded. 4. Entitlement to service connection for left upper extremity peripheral edema, to include as secondary to diabetes mellitus, is remanded. 5. Entitlement to service connection for right lower extremity peripheral edema, to include as secondary to diabetes mellitus, is remanded. 6. Entitlement to service connection for left lower extremity peripheral edema, to include as secondary to diabetes mellitus, is remanded. In a May 2018 VA examination report, the Veteran was not diagnosed with a vascular disease. The Veteran stated that his symptoms began in 2010 when he noticed swelling in his legs and wrists and found out that he had diabetes. From the claims file, it does not appear that any effort was made to determine if the Veteran's claimed bilateral upper and lower extremity conditions were a disease other than an artery and vain condition. Additionally, under Saunders v. Wilkie, the Veteran's symptoms, when paired with a clinical finding of functional impairment, are sufficient to be considered a disability for VA purposes. 886 F.3d 1356 (Fed. Cir. 2018). In that case, the United States Court of Appeals for the Federal Circuit addressed "the legal issue [of] whether pain without an accompanying pathology can constitute a "disability" under [38 U.S.C.] § 1110." 886 F.3d 1356, 1363-64 (Fed. Cir. 2018). The Federal Circuit held that the Veterans Court erred "as a matter of law in holding that pain alone, without an accompanying diagnosis or identifiable condition, cannot constitute a 'disability' under [38 U.S.C.] § 1110, because pain in the absence of a presently-diagnosed condition can cause functional impairment." The Federal Circuit "conclude[d] that pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Further, the Federal Circuit held that "[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that pain reaches the level of a functional impairment of earning capacity." Despite the Veteran not having a current diagnosis of an artery or vein condition, he is experiencing functional impairment in the form of swelling in his ankles and wrists. Because of this, a new VA examination is necessary to determine whether the Veteran has a current diagnosis, and if not, whether his functional impairments were at least as likely as not related to an in-service injury, event, or illness, or were secondarily related to his service-connected diabetes and now service-connected hypertension. 7. Entitlement to an initial compensable rating (higher than 0 percent) for right ear hearing loss is remanded. The Board notes that a favorable decision on the claim for service connection for left ear hearing loss being remanded would impact the Veteran's claim for an increased rating for right ear hearing loss. Because of this, the Board finds that these issues are inextricably intertwined, and the appeal is remanded. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). 8. Entitlement to a TDIU rating is remanded. The Board notes that favorable decisions on the claims for service connection and an increased rating being remanded would impact the Veteran's claim for a TDIU rating. Because of this, the Board finds that these issues are inextricably intertwined, and the appeal is remanded. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). Additionally, the Board notes that the Veteran has never had an examination to assess the factors that will allow VA to determine whether he is capable of substantially gainful employment. Because of this, a VA examination is necessary. The matters are REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 2. Arrange for the Veteran's file to be forwarded to a VA examiner for clarifying addendum opinions regarding the likely cause of the Veteran's left ear hearing loss and tinnitus. The examiner or consulting physician must review the entire record (including all updated records obtained pursuant to the above development order). Concerning the Veteran's left ear hearing loss, based on his or her review, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not that the Veteran's left hearing loss is either directly related to active military service, to include acoustic trauma OR represents the initial manifestation of his disease. Concerning the Veteran's tinnitus, based on his or her review, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not that the Veteran's tinnitus is either directly related to active military service, to include acoustic trauma, represents the initial manifestation of his disease, or was proximately due to or aggravated by his service-connected right ear hearing loss. 3. Schedule the Veteran for VA examinations to determine the nature and cause of any diagnosed bilateral upper and lower extremity conditions. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. After the above has been completed, the examiner should address whether it is at least as likely as not that any diagnosed right and left upper and lower extremity conditions are causally related to active service, represent the initial manifestation of any current diagnosis, or were proximately due to or aggravated by his service-connected diabetes mellitus and hypertension. The Board notes that functional impairment DOES count as a disability for VA disability benefits purposes, even if the Veteran does not have "formal" medical diagnoses. In reaching any conclusion, the examiner should consider the May 2018 VA examination report where the Veteran stated that his ankles and wrists swelled up. 4. Provide the Veteran with a VA examination to assess the factors that will allow VA to determine whether he is capable of substantially gainful employment. The examiner is asked to interview the Veteran and specify all subjective reports and objective symptoms associated with his service-connected disabilities. All social and occupational impairment caused by these disabilities must be described in full. The examiner is requested to describe the ways in which the Veteran's service-connected disabilities (without regard to age or nonservice-connected disabilities) precludes him from securing or following a substantially gainful occupation, in light of the Veteran's individual education, training, and work experience/history. In this regard, the examiner should consider the Veteran's VA 21-4192 Forms of record. (Continued on next page) 5. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.