Citation Nr: 18123788 Decision Date: 08/03/18 Archive Date: 08/03/18 DOCKET NO. 15-11 201 DATE: August 3, 2018 ORDER Service connection for right ear hearing loss is granted. REMANDED Entitlement to service connection for hypertension, claimed as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a gastrointestinal disorder, claimed as secondary to service-connected PTSD, is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, his currently diagnosed right ear hearing loss is related to his in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to January 1966. He is the recipient of numerous awards and decorations, to include the Purple Heart. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence received since the March 2015 statement of the case. 38 C.F.R. § 20.1304(c). The undersigned also held the record open for 60 days for the receipt of additional evidence, which was received in June 2018. 38 U.S.C. § 7105(e) (as amended). Therefore, the Board may properly consider such evidence. Further, while a June 2018 VA hearing loss and tinnitus examination report and updated VA treatment records were associated with the record subsequent to the May 2018 hearing and the Veteran has not waived AOJ consideration of such evidence, the Board herein grants service connection for right ear hearing loss, and remands his remaining claims such that the AOJ will have an opportunity to consider such evidence in the readjudication of the claims, no prejudice results to the Veteran in the Board proceeding with a review of his appeal at this time. With regard to the characterization of the Veteran’s right ear hearing loss claim, the Board observes that the RO originally denied service connection for such disorder in a rating decision issued in February 2012. At such time, the RO indicated that, although evidence showed that the Veteran currently had right ear hearing loss for VA purposes, the November 2011/January 2012 VA examiner opined that it was not likely that such was due to military noise exposure. However, in December 2012, the Veteran’s requested reconsideration of such determination and indicated that his right ear hearing loss was incurred at the time of his in-service combat injury that led to the award the Purple Heart. As such evidence is new and material to the Veteran’s claim and was received within one year of the February 2012 rating decision, the Board finds that 38 C.F.R. § 3.156(b) is applicable and his original claim is reviewed on a de novo basis. With regard to the Veteran’s service connection for a gastrointestinal disorder, the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In this case, while the Veteran’s service connection claim on appeal was previously characterized as a claim for service connection for gastroesophageal reflux disease (GERD), in light of Brokowski and the medical findings of record, the Board has recharacterized the issue as a claim for entitlement to service connection for a gastrointestinal disorder. 1. Entitlement to service connection for right ear hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). The record reflects that the Veteran is in receipt of the Purple Heart. As such, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The combat presumption, however, does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service disorders. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has right ear hearing loss as a result of in-service noise exposure. Specifically, in written correspondences and at his May 2018 Board hearing, he reported that, while serving as a crew chief and gunner on a helicopter with a M60 machine gun during combat in Vietnam, he was exposed to sounds from such helicopter that he flew in for approximately 600/700 hours and from jets coming in and out of the airbase without hearing protection. The Veteran stated that he began to notice that he had right ear hearing problems once he returned home and was having trouble understanding his family and friends. Furthermore, the Veteran noted that, following his period of service, he worked in a fertilizer plant and as a machinist. Here, the Veteran further noted that the fertilizer business was not noisy; and that he wore hearing protection when he performed certain jobs in the machine shops. As such, he contends that service connection for right ear hearing loss is warranted. As an initial matter, November 2011 and June 2018 VA examination reports reflect a current diagnosis of right ear hearing loss for VA purposes. 38 C.F.R. § 3.385. Service treatment records (STRs) indicate that, at the time of the Veteran’s pre-induction examination in April 1964, audiology testing revealed the following thresholds findings in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 X 10 However, prior to January 1, 1967, American Standards Association (ASA) units were utilized in service department audiograms. Therefore, conversion to International Standards Organization-American National Standards Institute (ISO-ANSI) units is necessary. Therefore, as converted to ISO-ANSI units, audiology testing in April 1964 revealed the following thresholds findings in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 10 X 15 Furthermore, a January 1966 audiogram conducted at the conclusion of the Veteran’s service reflects the following thresholds findings in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 5 X 20 As converted to ISO-ANSI units, audiology testing in January 1966 revealed the following thresholds findings in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 15 X 25 While the January 1966 Report of Medical Examination reflects the Veteran’s report that he never had or was experiencing hearing loss, as his puretone threshold at 500 Hertz was 40 decibels or greater in the right ear, he had documented right ear hearing loss on separation from service. See 38 C.F.R. § 3.385. Furthermore, the Veteran’s report of in-service noise exposure is consistent with the circumstances of his combat service. However, in a January 2012 opinion, a VA examiner opined that it was not likely that the Veteran’s right ear hearing loss was a result of military noise exposure. In this regard, the examiner found that the Veteran’s STRs indicated that his hearing was within normal limits at the time of separation from service per the Institute of Medicine 2005 study. The examiner further found that, in cases where there were entrance and separation examinations, and such examinations were normal, there was no scientific bases for concluding that hearing loss that developed afterward was causally related to military service. However, it appears that such opinion is based on an inaccurate factual basis as right ear hearing loss is shown on the Veteran’s January 1966 separation examination. Furthermore, hearing loss need not be shown in service for service connection to be established; rather, service connection may be established for a current hearing disability with evidence that the current disability is causally related to service. Hensley, supra; Ledford, supra. Therefore, the January 2012 VA examiner’s opinion is afforded no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. Ap. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In contrast, a June 2018 private treatment record indicates that the Veteran reported that he was exposed to high levels of noise in service. Here, the private audiologist, T.L., noted that the Veteran was exposed to machine guns, jet engines, flight line noise, helicopter noise, and other various noises while in service, and indicated that he reviewed the Veteran’s medical records, to include his enlistment and separation examinations. Ultimately, T.L. opined that the Veteran’s hearing loss more likely than not started during his service. As rationale for the opinion, Dr. T.L. reported that the Veteran was exposed to high levels of noise while in service secondary to his duties. Furthermore, at a June 2018 VA hearing loss and tinnitus examination, the examiner opined that the Veteran’s right ear hearing loss was at least as not caused by or a result of an event in military service. As rationale for the opinion, the examiner reported that the Veteran’s STRs indicated a shift in hearing in the right ear on his January 1966 separation examination, and on a hearing test in December 1964 as compared to the hearing thresholds obtained on an April 1961 induction examination. The examiner further reported that the Veteran was a crew chief and gunner on helicopters, and he served fourteen months in Vietnam where he was wounded. Here, the examiner indicated that, based on the shifts in hearing noted in his STRs and his MOS, which had a high probability of noise exposure, the Veteran’s right ear hearing loss was at least as likely as not caused by noise exposure in service. Based on the foregoing, the Board finds that the June 2018 opinions provided by private audiologist, Dr. T.L., and the VA audiologist are highly probative regarding a connection between the Veteran’s right hearing loss and his military service. In this regard, such opinions indicate that both examiners reviewed and considered the Veteran’s service and medical history; both examiners provided a complete rationale, relying on and citing to those reviewed records; and both examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Therefore, the Board finds that the Veteran’s right ear hearing loss is related to his in-service noise exposure. Consequently, service connection for right ear hearing loss is warranted. 38 U.S.C. 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for hypertension, claimed as secondary to service-connected PTSD. The Veteran contends that his hypertension is caused or aggravated by his service-connected PTSD. Specifically, in December 2013 and March 2015 written correspondences, he reported that medical evidence supported a strong link between PTSD and hypertension; there was considerable epidemiological evidence that demonstrated an association between PTSD and cardiovascular disease; and research indicated that hypertension prevalence was higher for the PTSD and PTSD with depression groups. In the instant case, the Veteran is currently service-connected for PTSD, evaluated as 50 percent disabling. Additionally, VA and private treatment records dated from November 2010 to the present reflect an assessment/impression of benign essential hypertension and/or hypertension. Consequently, in light of the current diagnosis of hypertension, the fact that service connection is in effect for PTSD, and the medical literature cited by the Veteran that suggests a relationship between the two, the Board finds that a remand is necessary in order obtain an opinion addressing whether the Veteran’s hypertension is caused or aggravated by his service-connected PTSD. 3. Entitlement to service connection for a gastrointestinal disorder, claimed as secondary to service-connected PTSD. In his December 2012 claim, the Veteran specifically sought to establish service connection for GERD. His essential contention, which he raised in December 2013 and March 2015 written correspondences, is that his GERD is caused or aggravated by his service-connected PTSD. In this regard, the Veteran reported that research had shown that stress and anxiety were associated with the worsening of GERD symptoms and there was a link between PTSD and the digestive system. As noted previously, the Veteran is currently service-connected for PTSD, evaluated as 50 percent disabling. Additionally, private treatment records dated from January 2014 to the present reflect an assessment of helicobacter pylori with associated gastritis. Based on the above, the Board finds that, while the competent evidence of record does not contain a diagnosis of GERD, such confirms that the Veteran has current diagnoses of helicobacter pylori with associated gastritis. Therefore, in light of such diagnosis, the fact that service connection is in effect for PTSD, and the medical literature cited by the Veteran that suggests a relationship between the two, the Board finds that a remand is necessary in order obtain an opinion addressing whether the Veteran’s gastrointestinal disorder is caused or aggravated by his service-connected PTSD. The matters are REMANDED for the following action: 1. Forward the record to an appropriate VA examiner so as to obtain an opinion as to whether the Veteran’s hypertension is caused or aggravated by his service-connected PTSD. The record and a copy of this Remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the record, please offer an opinion as to the following inquiry: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is caused or aggravated by his service-connected PTSD. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner should consider the medical literature cited by the Veteran. A rationale for any opinion offered should be provided. 2. Forward the record to an appropriate VA examiner so as to obtain an opinion as to whether the Veteran’s gastrointestinal disorder is caused or aggravated by his service-connected PTSD. The record and a copy of this Remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the record, please offer an opinion as to the following inquiries: (A) Identify all gastrointestinal disorders found to be present at any time proximate to the Veteran’s December 2012 claim, even if such disorder has now resolved. The examiner must specifically address diagnoses of helicobacter pylori with associated gastritis. (B) For each diagnosed gastrointestinal disorder, offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder is caused or aggravated by his service-connected PTSD. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner should consider the medical literature cited by the Veteran. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel