Citation Nr: 19154875 Decision Date: 07/16/19 Archive Date: 07/16/19 DOCKET NO. 14-15 271A DATE: July 16, 2019 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Service connection for hypertension is remanded. The claim for a rating in excess of 10 percent for a disability impacting the fingers of the right hand is remanded. FINDINGS OF FACT 1. The evidence for and against the claim that the Veteran’s bilateral hearing loss was caused by noise exposure during service is at least in relative equipoise. 2. The Veteran first noticed tinnitus during service and has continuously experienced it ever since. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from October 1953 to October 1955. His military specialty (MOS) was general construction worker. Military personnel records show that he served in Korea from July 1954 to October 1955. Records also show that the he served in the U.S. Army Reserve (USAR) from 1972 to 1993 with approximately 2 weeks of active duty service per year in the construction field. In September 2017, the Board denied the Veteran’s claims for service connection for bilateral hearing loss, tinnitus, and hypertension, as well as a rating in excess of 10 percent for his right hand finger disabilities, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In August 2018, the Court issued an order partially vacating the September 2017 Board decision and remanded the above referenced four claims for compliance with a Joint Motion for Partial Remand (JMPR). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Hearing Loss The Veteran is seeking service connection for bilateral hearing loss, which he believes, resulted from noise exposure he experienced during his military service. Service personnel records confirm that the Veteran served in Korea War. As such, noise exposure during service is conceded. U.S.C. § 1154(a). However, military noise exposure alone is not considered to be a disability, rather, it must be shown that the military noise exposure caused hearing loss for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94. A March 2015 VA examination diagnosed the Veteran with bilateral hearing loss for VA purposes. Specifically, auditory thresholds in the frequency 3000 and 4000 Hertz were both greater than 40 decibels in each ear. However, the examiner opined that the Veteran’s hearing loss was less likely than not (less than 50 percent probability) related to service, because audiograms up to 1980 showed normal hearing, while high level noise exposure would cause either immediate hearing loss or progressive hearing loss, retroactive effects in hearing were not expected so many years after exposure to military noise. A September 2016 VA examination confirmed the Veteran’s hearing loss for VA purpose, but the examiner again opined that the Veteran’s hearing loss was less likely than not (less than 50 percent probability) related to service, because audiograms up to June 1984 showed normal hearing; healing loss for VA purposes was found in March 2015, approximately 60 years after service. The examiner explained that considering the Veteran was 82 years old at the time of the examination, his hearing loss was more likely due to age, hereditary factors, post-service noise exposure, or a combination of all these factors. In the August 2018 JMPR, the parties concluded that the September 2016 VA medical opinion was inadequate for rating purposes because the examiner did not provide an adequate rationale for her opinion that the Veteran’s hearing loss is not related to his military noise exposure. In April 2019, the Veteran’s representative submitted a private opinion which concluded that the Veteran sustained mild hearing loss due to noise exposure during service and his hearing loss was as likely as not (50 percent or more probability) due to his service related nose exposure. The opinion addressed the issue why the Veteran demonstrated high frequency hearing loss decades after his service. The opinion explained that exposure to loud noise associated with weaponry is an undisputedly high risk for sensorineural high frequency hearing loss, while the initial damage that was done may have been quite subtle and difficult to detect, it was known that any acoustic trauma, however minor, could set the stage for more rapidly progressive age-related hearing loss. The opinion cited to several medical studies in support of its conclusion. The Board finds that the evidence for and against the claim is at least in relative equipoise. As such, the Board resolves all reasonable doubt in favor of the Veteran. 38 U.S.C § 5107(b); 38 C.F.R § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for bilateral hearing loss is granted. Tinnitus The Veteran is seeking service connection for tinnitus, which he believes, resulted from noise exposure he experienced during service. The Veteran has reported that he first noted tinnitus in service and had continuously experienced it ever since. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Veteran has credibly reported the onset of tinnitus during service, and that he has continuously noticed it ever since. Accordingly, service connection for tinnitus is granted. REASONS FOR REMAND 1. Service connection for Hypertension The Veteran is seeking service connection for hypertension, which he believes, resulted from his service. STRs show a blood pressure reading of 144/70 at an October 1952 pre-induction examination, 140/80 at an October 1953 enlistment physical, and 120/90 at October 1955 separation physical. In the August 2018 JMPR, the parties concluded that the September 2017 Board decision it did not consider the Veteran’s February 2013 informal claim for service connection for hypertension in which he asserted that his hypertension was incurred coincidental to his military service or as result of it. In April 2019, the Veteran’s representative submitted a medical opinion that hypertension was as likely as not (50 percent or more probability) related to his wartime service, reasoning that combat deployment had been established as posing risk for later development of hypertension. The opinion explained that although the Veteran did not participate in actual combat activity, he was subject to the worry and stress of standing guard in a war zone during Korea war, and chronic stress had been long presumed to be a factor in the development of hypertension. The opinion cited medical literature and medical studies to support its conclusions. However, this opinion did not address the elevated blood pressure shown at the Veteran’s enlistment physicals. As such, further development is necessary to comply with the JMPR directives and to determine the etiology of the Veteran’s hypertension. 2. Increased Rating for Fingers The Veteran is seeking a rating in excess of 10 percent for his right finger disabilities. In the August 2018 JMPR, the parties concluded that the VA decision review officer incorrectly advised the Veteran in the September 2015 hearing that it was not possible to obtain a rating in excess of 10 percent for his right finger disability, and the matter should be remanded to provide the Veteran with a new hearing. Specifically, the JMPR pointed out that a rating in excess of 10 percent rating might be possible on an extraschedular basis or if the evidence showed ankylosis in one or more digits. The Veteran has also stated that his right hand disability had worsened since the last VA examination in October 2010. As such, further development is required to assess the current severity of this condition. Therefore, the matters are REMANDED for the following action: 1. Schedule a VA examination on the Veteran’s hypertension condition to determine its etiology, and answer the following questions: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension either began during or was otherwise caused by his active service, to include his wartime military service? Why or why not? In doing so, the examiner should address the Veteran’s lay statement that his hypertension was incurred coincidental to his military service or as result of it, the April 2019 private medical opinion, as well as STRs showing elevated blood pressure at the time of the enlistment. 2. Schedule a VA examination to assess the current severity of the Veteran’s finger disabilities on his right hand. (Continued on the next page)   3. Provide the Veteran with an opportunity for a new hearing for his increased rating claim for the right finger disabilities, the hearing officer should inform the Veteran that a rating in excess of 10 percent may be available on an extraschedular basis or if the evidence shows ankylosis in one or more digits. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Q. Wang, Associate Counsel 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.