Citation Nr: A25035586 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210715-172694 DATE: April 17, 2025 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for right shoulder acromioclavicular degenerative disease is remanded. Entitlement to service connection for left shoulder acromioclavicular degenerative disease is remanded. Entitlement to service connection for lumbar spine degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1990 to March 1991, including service in the Southwest Asia theater of operations. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2020 rating decision. In July 2021, the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) and elected the evidence submission docket. The Board will consider the evidence of record when the August 2020 rating decision was issued on August 5, 2020, and evidence submitted by the Veteran within 90 days of receipt of the VA Form 10182 on July 6, 2021. 38 C.F.R. § 20.303. The 90-day evidence submission period ended on October 4, 2021. The Board shall remand a claim to correct an error by the AOJ to satisfy its duty to assist the claimant under 38 U.S.C. § 5103A if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A (f)(2)(A); 38 C.F.R. § 20.802 (a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802 (a). 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for right shoulder acromioclavicular degenerative disease. 4. Entitlement to service connection for left shoulder acromioclavicular degenerative disease. 5. Entitlement to service connection for lumbar spine degenerative arthritis. The Veteran seeks service connection for tinnitus, hypertension, right and left shoulder acromioclavicular degenerative joint disease, and lumbar spine degenerative arthritis. He argues that each is due to toxic exposures during his service in Southwest Asia and the Persian Gulf War. VA treatment records show the Veteran currently has each disability that he claimed. The VA records show complaints of back pain beginning in April 2010, and a January 2015 lumbar spine x-ray showed early upper lumbar degenerative disc disease. Degenerative changes of the lower lumbar spine were also noted in a January 2020 x-ray. The Veteran was provided a VA back conditions examination in July 2020. The Veteran reported that his back pain began in 2008, and the examiner diagnosed degenerative arthritis of the spine. Elevated blood pressure readings are noted in June 2010, with a diagnosis for benign essential hypertension documented in January 2015. The Veteran was also provided a VA hypertension examination in July 2020, during which the Veteran reported an onset of dizziness and headaches in 2011 and that he was eventually diagnosed with hypertension by a physician, and the examiner confirmed a diagnosis for hypertension. VA treatment records do show complaints of tinnitus in December 2017, and the Veteran reported he had started experiencing tinnitus a few months prior. The Veteran was provided a VA tinnitus examination in June 2020, during which he also reported that his tinnitus first started near the end of 2017. Finally, VA treatment records include complaints of chronic left shoulder pains, and a January 2020 x-ray showed moderate acromioclavicular degenerative disease of the left shoulder. The Veteran was also provided a VA shoulder examination in July 2020, and the examiner diagnosed left shoulder acromioclavicular degenerative disease. Finally, although no right shoulder pathologies or disabilities were identified in the July 2020 VA shoulder examination, VA treatment records include the Veteran's complaints of right shoulder pains and a January 2015 right shoulder x-ray showing mild right shoulder acromioclavicular degenerative disease. The Veteran filed his initial claims for service connection for each disability in April 2020, and claimed each was related to chemical exposures during his service in the Gulf War. His service personnel records confirm deployment to Southwest Asia. Service connection may be warranted for a Persian Gulf veteran with a qualifying chronic disability that became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2026, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a). A "qualifying chronic disability" means a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders, and (3) diagnosed illnesses that the Secretary determines warrant a presumption of service-connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2). Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes, are not considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(iii). As noted, the Veteran was provided VA examinations in connection with each of these claims. For tinnitus, the examiner concluded it was less likely than not that the Veteran's tinnitus was less likely than not caused by in-service noise exposure. No opinion was obtained for tinnitus regarding any Gulf War toxic exposures. For the Veteran's claimed shoulder, back, and hypertension disabilities, the July 2020 VA examiners explained the Veteran's disabilities were diseases with clear and specific etiologies and diagnoses, and concluded it was less likely than not that the disabilities were related to a specific exposure event experienced by the veteran during service in Southwest Asia. However, the Board finds the claims must be remanded to obtain medical opinions under 38 U.S.C. § 1168 and the Veteran's toxic exposure risk activities. The Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) was passed into law in August 2022 while these appeals were pending. Under 38 U.S.C. § 1168, if a Veteran submits a claim for compensation for a service-connected disability with evidence of a disability and evidence of participation in a toxic exposure risk activity during active military, naval, air, or space service, and such evidence is not sufficient to establish a service connection for the disability, then VA shall provide the Veteran with a medical examination and obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the claimed disability and the toxic exposure risk activity. Toxic exposure risk activity (TERA) means any activity that requires a corresponding entry in an exposure tracking record system as defined in section 1119 (c) for the Veterans who carried out the activity, or any activity that the Secretary determines qualifies for purposes of this subsection when taking into account what is reasonably prudent to protect the health of Veterans. 38 U.S.C. § 1710 (e)(4)(C). Section 1119 provides that the Secretary shall presume any covered Veteran was exposed to substances, chemicals, and airborne hazards during service as specified in subsection (c)(1), unless there is affirmative evidence to establish that the covered veteran was not exposed to any such substances, chemicals, or hazards in connection with such service. 38 U.S.C. § 1119 (b)(1). The term covered Veteran includes any Veteran who, on or after August 2, 1990, performed active military, naval, air, or space service while assigned to a duty station in Saudi Arabia or Kuwait. 38 U.S.C. § 1119 (c)(1)(A). The Veteran's personnel records show he was deployed to Saudi Arabia from January 1991 to March 1991 in support of Operations Desert Storm and Desert Shield, and participated in the Defense of Saudi Arabia and Liberation and Defense of Kuwait campaigns. He is a "covered Veteran," and is presumed to have been exposed to substances, chemicals, and airborne hazards during his service, and to have taken part in TERA. Notably, the Secretary has not determined that there is no indication of an association between the disabilities claimed by the veteran and the TERA for which the Veteran submitted evidence. As the rating decision on appeal was issued prior to the enactment of the PACT Act and 38 U.S.C. § 1168, VA's failure to obtain an examination and opinion with respect to TERA is not a pre-decisional duty to assist error. Nonetheless, remand is warranted to correct an error in satisfying VA's statutory duty under 38 U.S.C. § 1168 to obtain such an opinion, and correction of the error could have a reasonable possibility of substantiating the claims. 38 C.F.R. § 20.802. In addition, the July 2020 VA shoulder examination is not adequate regarding the Veteran's right shoulder. As noted above, no specific right shoulder diagnosis or symptoms were found during the VA examination. The July 2020 examiner only identified left shoulder acromioclavicular degenerative disease. However, VA treatment records are clear that the Veteran also has right shoulder acromioclavicular degenerative disease. In sum, when VA undertakes to provide examinations and opinions, it must ensure the examinations and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additional examinations and opinions must be obtained to determine whether the Veteran's claimed hypertension, tinnitus, left and right shoulder, and low back disabilities are related to toxic exposures during his service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. After examining the Veteran and reviewing the claims file, the examiner must determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that there is a relationship between the Veteran's hypertension and toxic exposure risk activity during his service in Southwest Asia. The examiner must consider the total potential exposure through the Veteran's applicable military deployments, and the synergistic, combined effect of all the Veteran's toxic exposure risk activities. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his tinnitus. After examining the Veteran and reviewing the claims file, the examiner must determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that there is a relationship between the Veteran's tinnitus and toxic exposure risk activity during his service in Southwest Asia. The examiner must consider the total potential exposure through the Veteran's applicable military deployments, and the synergistic, combined effect of all the Veteran's toxic exposure risk activities. 3. Schedule the Veteran for a new VA examination to determine the nature and etiology of his left and right shoulder acromioclavicular joint degenerative disease. After examining the Veteran and reviewing the claims file, the examiner must determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that there is a relationship between the Veteran's left and right shoulder acromioclavicular joint degenerative disease and toxic exposure risk activity during his service in Southwest Asia. The examiner must consider the total potential exposure through the Veteran's applicable military deployments, and the synergistic, combined effect of all the Veteran's toxic exposure risk activities. 4. Schedule the Veteran for a new VA examination to determine the nature and etiology of his lumbar spine degenerative arthritis. After examining the Veteran and reviewing the claims file, the examiner must determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that there is a relationship between the Veteran's lumbar spine degenerative arthritis and toxic exposure risk activity during his service in Southwest Asia. The examiner must consider the total potential exposure through the Veteran's applicable military deployments, and the synergistic, combined effect of all the Veteran's toxic exposure risk activities. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Morse, Stenson 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.