Citation Nr: 1635306 Decision Date: 09/09/16 Archive Date: 09/20/16 DOCKET NO. 11-07 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1969 to January 1971, with service in Vietnam from June 1969 to June 1970. The Board deeply appreciates the Veteran's meritorious combat service and recognizes his receipt of the Combat Infantryman Badge. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. The Veteran had initiated an appeal of the denial of service connection for peripheral neuropathy of the right lower extremity, the left lower extremity, the right upper extremity, and the left upper extremity. A December 2015 rating decision granted service connection for each of these disabilities. Consequently, these matters are not before the Board. The Veteran had also initiated an appeal of the denial of higher ratings for posttraumatic stress disorder (PTSD) with alcohol abuse (in excess of 30 percent prior to August 12, 2015 and in excess of 50 percent from August 12, 2015), and of the denial of service connection for low back disability, for left big toe disability, and for ischemic heart disease. However, following a February 2016 Statement of the Case addressing these issues, the Veteran did not file a timely substantive appeal (as the VA Form 9 he submitted for these issues was not received by VA until June 2016). Consequently, these matters are not before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND On review of the record, the Board has found that further development is needed for VA to fulfill its duties mandated under the Veterans Claims Assistance Act of 2000 (VCAA) for the claims on appeal. As an initial matter, the record reflects that the Veteran has been awarded Social Security Administration (SSA) disability benefits (as documented by a February 2012 award letter from SSA). A request to SSA for a complete set of records pertaining to the Veteran, including any decision(s) and all medical evidence considered in making the decision(s), is necessary. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Service Connection for Bilateral Hearing Loss The Veteran states that he currently has bilateral hearing loss as a result of enduring noise trauma while serving in combat in the infantry while stationed in Vietnam. He also states that his bilateral hearing loss may be caused or aggravated by his service-connected tinnitus. In light of his confirmed combat service, the Board acknowledges and finds that the Veteran was exposed to loud noise in service. A hearing loss disability, for VA compensation purposes, is defined as: "when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385. At present, the evidence of record does not document hearing loss disability (for VA compensation purposes) in either of the Veteran's ears (pursuant to 38 C.F.R. § 3.385, which is required for service connection for hearing loss) at any time during the period of the current claim. A March 2008 VA treatment record documented the Veteran's initial report of hearing loss symptoms to a VA medical provider. Thereafter, an April 2008 VA audiology consultation report noted that audiometric testing had revealed "normal" hearing in both ears; on remand, the report of this April 2008 audiometric testing must be obtained. On August 2008 VA audiology examination, audiometric testing did not reveal hearing loss disability in either ear (pursuant to 38 C.F.R. § 3.385); however, the results of such testing were just short of the requirements set forth in 38 C.F.R. § 3.385. Subsequent VA treatment records have noted the Veteran's ongoing complaints of bilateral hearing loss symptoms. At his June 2016 hearing, he testified that he was currently being treated for bilateral hearing loss symptoms at the Houston VA Medical Center; on remand, all updated treatment records from this facility should be obtained. He also testified that he was exposed to loud sounds on a daily basis in service as "infantry in the bush," and he expressed his belief that his bilateral hearing loss symptoms may be related to his service-connected tinnitus. On remand, the Veteran should be afforded a new audiology examination. If a current bilateral hearing loss disability is shown by the results of audiometric testing, then the examiner should render an opinion addressing the medical questions of whether such disability may have been caused or aggravated by any incident of the Veteran's military service (to specifically include his conceded combat noise exposure therein) or by his service-connected tinnitus. Service Connection for Hypertension The Veteran states that he currently has hypertension due to his in-service exposure to herbicides in Vietnam. He also states that his hypertension may be caused or aggravated by his service-connected type II diabetes mellitus and/or by his service-connected PTSD. The Veteran's service treatment records do not note any complaints, findings, diagnosis, or treatment of hypertension in service, to include at the time of his November 1970 service separation examination (when his sitting blood pressure measured 120/80). In light of his confirmed Vietnam service, the Board concedes that the Veteran was exposed to herbicides in service. Post-service, on August 2008 VA audiology examination, the Veteran reported that he was taking blood pressure medication [which was unrelated to his hearing loss claim, but he reported this to the audiology examiner nonetheless]. Thereafter, a November 2008 VA treatment record documented that one of the Veteran's active outpatient medications was Metoprolol, to be taken every day "for heart/blood pressure." A March 2009 VA treatment record first noted an assessment of hypertension for the Veteran. On September 2010 VA hypertension examination, the Veteran reported that he had had hypertension "since all my life" and that he had been placed on Metoprolol for a "lone afib" in 2008. The VA examiner opined that the Veteran's hypertension "is not due to diabetes mellitus," but no rationale for this opinion was provided. At his June 2016 hearing, the Veteran testified that he was currently being treated for hypertension at the Houston VA Medical Center; on remand, all updated treatment records from this facility should be obtained. He also expressed his belief that his hypertension may be related to his service-connected type II diabetes mellitus (to include the three different medications he takes for his diabetes). He further expressed his belief that his hypertension may be related to his service-connected PTSD (as he noted that he had problems interacting with other people, and that he was always screaming and could not control his temper due to his PTSD). There are no medical opinions currently of record which address a nexus between the Veteran's hypertension and his exposure to herbicides in service. On remand, an examination to secure such medical opinion (with adequate rationale) is needed. See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011) (the National Academy of Sciences concluded that there was limited or suggestive evidence of an association between exposure to Agent Orange and hypertension); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the sole medical opinion currently of record does not adequately address the medical question of whether the Veteran's hypertension has been caused or aggravated by his service-connected type II diabetes mellitus. Furthermore, there are no opinions currently of record which address the medical question of whether the Veteran's hypertension has been caused or aggravated by his service-connected PTSD. Therefore, adequate medical opinions addressing these questions must be obtained. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) evaluations or treatment he has received for his claimed disabilities, and to provide all releases necessary for VA to obtain any private records of such evaluations or treatment. The AOJ should obtain for the record complete records of all such evaluations and treatment from all providers identified. If any records requested are unavailable, the reason must be explained for the record. [If the Veteran does not provide the requested releases so that VA may obtain the records, the AOJ must request that the Veteran obtain such records himself and provide them to VA.] The AOJ should also specifically secure for the record the complete clinical records of all updated (to the present) VA evaluations and treatment the Veteran has received for his claimed disabilities, as well as the report of the audiometric testing conducted at his April 2008 VA audiology consultation. 2. The AOJ should secure for the record from SSA complete copies of all records pertaining to the Veteran's award of SSA disability benefits, including any decision(s) and all medical evidence considered in making the decision(s). Any negative search result is to be noted in the record and communicated to the Veteran. 3. The AOJ should arrange for an audiology examination of the Veteran to ascertain the likely cause of any hearing loss disability in either ear. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. Based on review of the record and examination of the Veteran, the examiner must provide an opinion that responds to the following: If the Veteran has a hearing loss disability in either ear (pursuant to 38 C.F.R. § 3.385), then please identify the likely cause for such disability. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was: (a) incurred in, related to, or caused by any incident of his military service (to specifically include his conceded combat noise exposure therein); OR (b) caused or aggravated (the opinion must address aggravation) by his service-connected tinnitus? The examiner must explain the rationale and reasoning for all opinions and conclusions provided, citing to relevant evidence, supporting factual data, and medical literature, as appropriate. 4. The AOJ should arrange for a hypertension examination of the Veteran to ascertain the likely cause of his hypertension. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. Based on review of the record and examination of the Veteran, the examiner must provide an opinion that responds to the following: Please identify the likely cause for the Veteran's hypertension. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was: (a) incurred in, related to, or caused by any incident of his military service (to specifically include, with explanation, whether it is related to his conceded herbicide exposure therein); OR (b) caused or aggravated (the opinion must address aggravation) by his service-connected type II diabetes mellitus (including any medications taken for such); OR (c) caused or aggravated (the opinion must address aggravation) by his service-connected PTSD? The examiner must explain the rationale and reasoning for all opinions and conclusions provided, citing to relevant evidence, supporting factual data, medical literature, and prior medical opinions, as appropriate. 5. The AOJ should then review the record, ensure that all development sought is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for service connection for bilateral hearing loss and for hypertension. If either claim remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative the opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).