Citation Nr: 18140059 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-02 057 DATE: October 2, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is DENIED. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected disability is REMANDED. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disability is REMANDED. Entitlement to service connection for insomnia is REMANDED. FINDING OF FACT The competent and probative medical evidence of record preponderates against a finding that the Veteran has current bilateral hearing loss disability for VA compensation and pension purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1978 to October 1982, from May 1986 to May 1997, from September 2004 to September 2005, and from October 2005 to October 2007. 1. Entitlement to service connection for bilateral hearing loss disability The Veteran contends that as a result of hazardous noise exposure in active service he developed a bilateral hearing loss disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Board notes that some of the Veteran’s service treatment records (STRs) are not available in the present case and that there has been a formal finding of unavailability in August 2012. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The determination of whether a veteran has a ratable hearing loss “disability” is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385. The Court has indicated that, “when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Court held that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. The Court further held that 38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected. Hensley at 159. It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service. The August 2011 VA examiner evaluated the Veteran and determined that, while he may have been exposed to hazardous noise during service (which was conceded by the RO as the Veteran was granted service connection for tinnitus), he did not have a diagnosis of bilateral hearing loss disability within the parameters of VA disability regulation. 38 C.F.R. § 3.385. Audiometric testing of the Veteran yielded puretone thresholds, in decibels, as follows: 1k Hz 2k Hz 3k Hz 4k Hz Average Right 5 5 -5 0 1.25 Ear 10 0 5 10 6.25 Speech audiometry revealed speech recognition ability of 96 percent in the Veteran’s right ear and 96 percent in his left ear. Neither ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes. While the Veteran believes he has difficulty hearing, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As the medical evidence of record does not demonstrate that the Veteran has a current bilateral hearing loss disability, the Board must deny the claim for entitlement to service connection. To the extent that the Veteran contends that he has a bilateral hearing loss disability, the record does not show that he competent to state that he meets the audiometric requirements under 38 C.F.R. § 3.385. As the evidence does not show that he had meet the regulatory requirements for establishing a hearing loss disability for VA purposes, the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension as secondary to service-connected disability is remanded. The Veteran’s representative stated in the July 2018 written submission that the Veteran had blood pressure readings of 118/92 in April 1992 and 124/94 in March 1987, both periods of time during which the Veteran was on active service. A review of the Veteran’s STRs confirm these reported readings. The Veteran’s recent medical records demonstrate that he has been on prescription medication to regulate blood pressure. Additionally, the Veteran’s representative submitted an opinion relating high blood pressure to PTSD. The Veteran has not been evaluated for hypertension by a VA examiner. Furthermore, since this claim was initially filed the Veteran has been granted entitlement to service connection for PTSD in December 2015. The Veteran should be afforded a VA examination for hypertension to ascertain whether he currently has hypertension that is either directly related to his military service or secondary to his service connected PTSD. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disability is remanded. The December 2015 statement of the case stated that the Veteran’s STRs did not reflect an event, disease, or injury in service related to GERD. However, a review of the Veteran’s STRs document that he complained of stomach pains in April 1997. The Veteran also marked “frequent indigestion” as a complaint on his medical history in May 1997. The Veteran’s current medical records show some treatment for excess stomach acid (e.g. in December 2014), but it is unclear if it is a chronic disability or if it is related to active service. Additionally, the Veteran has claimed the condition of GERD as secondary to other service-connected disabilities and there has not been an opinion offered on this contention. Furthermore, the Veteran has been granted service connection for several conditions since the claim for GERD was first entered. The Veteran should be afforded a VA examination for this claim. 3. Entitlement to service connection for insomnia is remanded. The Veteran is service-connected for PTSD and for sleep apnea, among other conditions. The Veteran’s medical treatment records show complaints of sleep problems, but it is unclear from the record if the Veteran suffers from a separately diagnosed insomnia disorder, or if his sleep problems are symptoms associated with his already service-connected disabilities. VA should provide a medical opinion on this claim of insomnia and, if necessary, a medical examination. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2015 to the present. 2. With the assistance of the Veteran, determine if there are any outstanding private medical treatment records and obtain them. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension condition. The examiner is asked to: (a.) Opine whether the Veteran has hypertension that is at least as likely as not (i.e. probability of 50 percent or greater) related to an in-service injury, event, or disease. (b.) Opine if any diagnosed hypertension condition at least as likely as not (i.e. probability of 50 percent or greater) (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) The examiner should opine whether any diagnosed hypertension condition is at least as likely as not (i.e. probability of 50 percent or greater) (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any esophageal condition, to include GERD. The examiner should: (a.) Opine whether any diagnosed esophageal condition/GERD is at least as likely as not (i.e. probability of 50 percent or greater) related to an in-service injury, event, or disease. (b.) Opine if any diagnosed esophageal condition/GERD at least as likely as not (i.e. probability of 50 percent or greater) (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) Opine whether any diagnosed esophageal condition/GERD is at least as likely as not (i.e. probability of 50 percent or greater) (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. 5. The RO should request an opinion from an appropriate VA examiner on any insomnia condition. Physical examination by an appropriate VA examiner is left to the discretion of the VA examiner. The examiner should: (a.) Explain if the Veteran has a current separately diagnosable insomnia or other sleep disorder, or if the Veteran’s sleeping problems are symptoms associated with already service-connected disabilities. (b.) Opine whether any diagnosed insomnia condition is at least as likely as not (i.e. probability of 50 percent or greater) related to an in-service injury, event, or disease. (c.) Opine if any diagnosed insomnia condition at least as likely as not (i.e. probability of 50 percent or greater) (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (d.) Opine whether any diagnosed insomnia condition is at least as likely as not (i.e. probability of 50 percent or greater) (1) proximately due to service-connected disability, or   (2) aggravated beyond its natural progression by service-connected disability. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Miller, Erin (BVA)