Citation Nr: 1332845 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-01 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for bilateral hearing loss. WITNESSES AT HEARING ON APPEAL Appellant, spouse, and son ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to May 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision of the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2013, a hearing was held before the undersigned in Albuquerque, New Mexico. A transcript of the hearing is available for review. In July 2013, the Board remanded these matters for additional development. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). In July 2013, the Board remanded the claim for service connection for hypertension to determine whether the Veteran's hypertension was at least as likely as not related to service. The examiner was instructed to specifically address the Veteran's contentions that the blood pressure reading of 138/86 at service separation represented an early manifestation of hypertension. In a July 2013 VA hypertension examination report, the VA examiner stated that the Veteran's claims file did not document any hypertension issues on his December 1971 discharge examination. However, that statement, without the requested discussion of whether the 138/86 blood pressure reading noted at the Veteran's separation examination was an early manifestation of his hypertension, renders the July 2013 VA examination incomplete. Therefore, a remand is warranted to obtain a supplemental opinion from the July 2013 VA hypertension examiner. The Veteran should only undergo further examination if the prior examiner is not available, or the prior examiner cannot provide the requested opinion without first examining the Veteran. In July 2013, the Board also remanded the claim for service connection for bilateral hearing loss to determine whether the evidence showed that that a hearing loss disability clearly and unmistakably pre-existed service and if so, whether any pre-existing hearing loss disability was not aggravated by service. If a hearing loss disability was not found to have pre-existed service, the examiner was to opine whether the Veteran had a bilateral hearing loss disability related to service. The Board previously noted that in September 2006 the Veteran underwent a VA examination to address the etiology of hearing loss, and the examiner at that time opined that it was less likely than not that current hearing loss was related to noise exposure during service. The rationale for that opinion was that the Veteran's hearing loss had a conductive component that needed to be addressed by an ear, nose, and throat specialist and that his hearing sensitivity could improve after medical management. It was noted that the Veteran had a disputed pre-induction hearing test that might have shown a conductive hearing loss that could have been related to a history of otitis media that had cleared up by the time the Veteran separated from service, as shown on a normal audiometric testing at the time he separated from service. In a July 2013 VA audiology examination report, the audiologist indicated an inability to provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. Her rationale was that the Veteran's entrance audiogram, dated August 5, 1969, revealed normal hearing sensitivity in the right ear and the left ear results were tampered with or changed while item #71 clearly stated that there was defective hearing in the left ear. The result below the superimposed all zeros seemed to be within normal limits (25 decibels at 500, 100, and 2000 Hertz) while 4000 Hz revealed a mild hearing loss of 30dB. The exit audiogram dated December 23, 1971, indicated normal hearing sensitivity with all values zero for both ears. As stated in a 2004 compensation and pension report, "both tests must be viewed with speculation." With hearing test results that were obviously tampered with or altered, and a diagnosis of Eustachian tube dysfunction, the Veteran's reports of no history of ear problems, it was the examiner's belief that the hearing loss being a result of or aggravated by his military noise exposure was mere speculation. The Board finds that that examination report is inadequate. In providing that opinion, the audiologist clearly did not consider the Veteran's report of continuity of symptomatology of hearing loss since service, or the reports of continuity of symptomatology of his spouse and son. Further, the examiner indicated that the Veteran never reported hearing problems. In contrast, the September 2004 VA examination report documents that the Veteran complained of hearing loss in the left ear. In addition, the Board finds that the September 2006 VA examiner recommended that the Veteran be evaluated by an ear, nose, and throat (ENT) physician based on a finding at that time that the Veteran's hearing loss had a conductive component. Since that time, the Veteran has been diagnosed with sensorineural hearing loss. However, the Board finds that to fully determine the nature and etiology of the Veteran's hearing loss disability, that the Veteran must be afforded a new VA examination with an ENT physician, as was recommended by the September 2006 VA examiner. The Board also finds it prudent to briefly address the Veteran's service records associated with the claims file. First, the Veteran had service in the Republic of Vietnam from June 1970 to June 1971. Although his military occupational specialty of stock clerk is not one associated with combat, the Veteran was in a combat zone. Verification has been obtained that the Veteran was at the Long Binh Army Depot when it came under mortar attacks. That is consistent with the Veteran's report of exposure to noise while in Vietnam from incoming mortar rounds, jets and helicopters flying overhead, machine gun fire, and rarely to M50 machine guns without hearing protection. In addition, during a September 2004 VA examination, the Veteran stated that he worked in quartermaster, but was involved in artillery explosions around the parameter. Second, the Veteran's pre-induction medical examination records shows that in August 1969 he was found to have defective hearing in the left ear. Initial audiometry findings were reported as all zeros for the right ear; and 25 at the 500, 1000, and 2000 Hertz levels, and 30 at 4000 Hertz for the left ear. However, zeros were superimposed over the left ear findings, calling into question the actual findings. The Board finds that attempts should be made to resolve that question on examination. The Board notes that under summary of defects and diagnoses, it was noted that the Veteran had defective hearing in the left ear, which appears to be a medical determination regardless of the written audiometric numbers. Thus, the examiner should determine which audiometric findings would be consistent with a diagnosis of defective hearing of the left ear at that time. The Board also notes that in September 2013 written correspondence, the Veteran asserted that the readings were altered to make him eligible for service. That assertion should be considered by the examiner when providing the requested opinions. Accordingly, the case is REMANDED for the following actions: 1. Forward the claims file to the examiner who prepared the July 2013 VA hypertension examination report for a supplemental opinion. The examiner must review the claims file and must note that review in the report. The examiner should provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that hypertension is related to service. The examiner should specifically address the Veteran's contentions that the blood pressure reading of 138/86 at service separation represented an early manifestation of hypertension. In providing that opinion, the examiner should address medical literature submitted by the Veteran in support of his contentions. All necessary tests and studies should be accomplished. The examiner should provide a rationale for the conclusions reached. If the prior examiner is unavailable, or is unable to render the requested supplemental opinion without examining the Veteran, the Veteran should be schedule for an additional VA hypertension examination, by a physician with the appropriate expertise to provide the requested opinions. 2. Schedule the Veteran for a VA ENT examination, with an ENT specialist medical doctor, to address the nature and etiology of bilateral hearing loss. The examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished. The examiner should set forth all examination findings, along with the rationale for the conclusions reached, and the examiner should reconcile the opinion with all other evidence of record, to include prior VA audiology opinions. The examiner should provide the following information: (a) The examiner should opine whether there is clear and unmistakable evidence that any hearing loss (right, left, or bilateral) existed prior to the Veteran's period of active service. In providing that opinion, the examiner must address the Veteran's contentions that audiometric numbers of "0"were superimposed to make him eligible for service in light of the actual diagnosis of defective hearing of the left ear, and the underlying audiometric readings on entrance examination. (b) If the examiner determines that any hearing loss (right, left, or both) clearly and unmistakably existed prior to service, then the examiner must indicate whether there is clear and unmistakable evidence the disability was not aggravated during or by the Veteran's service beyond the natural progression of the disability. Otherwise, the examiner should opine whether it is at least as likely as not that any identified hearing loss is at least as likely as not (50 percent probability or greater) etiologically related to service. The examiner must consider the Veteran's statements and his family's statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 3. Then readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claims to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).