Citation Nr: 20006799 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 18-23 782 DATE: January 27, 2020 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for residuals from a cerebrovascular accident, to include loss of taste and smell, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1962 to March 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied entitlement to service connection for right ear hearing loss, hypertension, stroke, and loss of taste and smell. In November 2019, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is of record. The Board notes that the March 2018 Statement of the Case and June 2018 Supplemental Statement of the Case included as an issue on appeal a higher initial disability rating claim for left ear hearing loss. However, this issue is not currently before the Board as the Veteran did not appeal it in his September 2017 Notice of Disagreement or otherwise timely appeal the issue. Furthermore, the undersigned VLJ confirmed at the November 2019 Travel Board hearing that the only issues on appeal are the claims for entitlement to service connection for right ear hearing loss, hypertension, and residuals from a stroke, to include loss of taste and smell. Regrettably, further Agency of Jurisdiction (AOJ) action with respect to the claims on appeal is warranted, even though such will further delay an appellate decision on this matter. Service connection, generally Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Entitlement to service connection for right ear hearing loss The Veteran contends he suffers from right ear hearing loss from the acoustic trauma he experienced in-service on a naval ship. He was service-connected for left ear hearing loss in a March 2017 rating decision. At the outset, the Board notes additional legal guidance for hearing loss claims. A hearing loss disability is defined for VA compensation purposes using audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Court, in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Board notes that the Court’s directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including evidence pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). A February 2017 VA audiologist evaluated the Veteran and determined that, while the Veteran experienced subjective hearing loss symptoms and bilateral sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies), he did not have a diagnosis of right ear hearing loss for VA purposes, based on his 96 percent speech recognition score on the Maryland CNC test, as well as the following puretone auditory threshold results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 25 35 In order to qualify for right ear hearing loss for VA purposes, the Veteran is required to meet the regulatory threshold for hearing loss as defined in 38 C.F.R. § 3.385. Even though veterans are competent to testify as to some medical matters, Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007), VA has determined that hearing loss can only be considered a disability if it meets the audiometric or speech recognition scores of the Maryland CNC required by 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007) (hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385). Consequently, the Veteran does not meet the current disability requirement for right ear hearing loss as his speech recognition score was not less than 94 percent, and he did not have an auditory threshold of 40 decibels at any frequency or a threshold of 26 or more decibels at three frequencies. However, the Veteran’s VA audiological examination was in February 2017. The Veteran contended during his November 2019 Board hearing that his hearing loss has become worse since then, and specifically requested another audiological examination in his April 2018 substantive appeal (VA Form 9). Where the record does not adequately reveal the current state of the claimant’s disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). In this case, the evidence reflects the possibility of increased hearing loss since the February 2017 VA audiological examination, and the Veteran requested he be afforded another VA audiological examination. Consequently, a remand for a new audiological examination is warranted. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (“Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination”). Entitlement to service connection for hypertension The Veteran asserts that he suffers from hypertension as a result of his exposure to herbicide agents in Vietnam, or alternately, that his hypertension is caused or aggravated by a service-connected disease, to include diabetes mellitus and coronary artery disease. He additionally contends his stroke was caused by his hypertension. The RO conceded in the March 2017 rating decision that the Veteran was presumed exposed to herbicide agents as a result of his service in Vietnam. In June 2018, the Veteran was afforded a VA examination for his hypertension. The VA examiner noted the Veteran’s hypertension diagnosis in 1985. The VA examiner determined the baseline level of severity and that the Veteran’s blood pressures were well-controlled prior to the diagnosis of diabetes in 2010. The VA examiner reasoned that there was no appreciable worsening of blood pressure control after the diagnosis of diabetes mellitus in 2010 as compared to years prior to 2010. Moreover, the VA examiner opined that the only mechanism whereby diabetes could aggravate hypertension would be via the development of diabetic nephropathy, and this Veteran had no evidence of diabetic nephropathy. In addition, there was no mechanism where ischemic heart disease could aggravate hypertension. Therefore, the VA examiner opined that the Veteran’s hypertension was less likely than not aggravated beyond its natural progression by the Veteran’s service-connected diabetes and/or ischemic heart disease. The June 2018 opinion regarding the claim for service connection did not opine as to whether the Veteran’s hypertension is a result of exposure to herbicide agents or address whether the hypertension was caused by the Veteran’s service-connected diabetes and/or coronary artery disease. Therefore, an opinion should be obtained on remand that addresses the multiple theories of entitlement to service connection for hypertension. Entitlement to service connection for residuals from a stroke, to include loss of taste and smell The Veteran has asserted that he suffers from residuals of a stroke, to include loss of taste and smell, that are caused or aggravated by a service-connected disease, to include diabetes mellitus and coronary artery disease. He additionally contends his stroke was caused by his hypertension. In June 2018, the Veteran was afforded a VA examination for central nervous system and neuromuscular diseases. The VA examiner noted the Veteran had an old left front infarct on a CT scan of the head in April 2008. The Veteran reported having a severe headache in the 1980s, but was not diagnosed with a stroke at that time. The VA examiner found the Veteran had no residuals from the headache nor any neurologic deficits at the present time. The VA examiner found it was less likely than not that the Veteran’s stroke was proximately due to or the result of ischemic heart disease. He opined that there is no relationship between stroke and ischemic heart disease, and there is no evidence that the Veteran sustained a stroke during his coronary artery bypass grafting in 1992. The VA examiner determined the baseline level of severity and that there was an absence of any neurologic deficits. The VA examiner reasoned that there were no residuals from the headache and no neurologic deficits. In the absence of any residuals, there had not been any aggravation by diabetes. Therefore, the VA examiner opined that the Veteran’s stroke was less likely than not aggravated beyond its natural progression by the Veteran’s service-connected diabetes and/or ischemic heart disease. The June 2018 opinion regarding the claim for service connection did not opine as to whether the Veteran’s residuals of a stroke are related to the Veteran’s service-connected diabetes. It is also inadequate because it made general assertions about the relationship between ischemic heart disease and strokes in its reasoning without discussing the specific facts of this case. Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). Therefore, an opinion should be obtained on remand that addresses this theory of entitlement to service connection for residuals of a stroke, to include loss of taste and smell. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination. After reviewing the record, the examiner should indicate whether right ear hearing loss is at least as likely as not (50 percent probability) related to service, to include the Veteran’s contentions that he was exposed to acoustic trauma in-service. 2. Obtain a medical opinion from an appropriate physician that addresses whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is related to service, to include the Veteran’s presumed exposure to herbicide agents during service in Vietnam. If hypertension has been added to the list of diseases presumed service-connected in veterans exposed to Agent Orange pursuant to Veterans and Agent Orange: Update 11 (2018), no opinion is necessary. The physician should also provide an opinion as to whether hypertension is either (a) caused or (b) aggravated by either service-connected diabetes mellitus or service-connected coronary artery disease. If aggravation is found, the baseline level of disability should be identified to the extent possible. 3. An appropriate physician should identify all current disabilities that are residuals of the Veteran’s cerebrovascular accident. Obtain a medical opinion from the physician that addresses whether the Veteran’s residuals from a cerebrovascular accident, to include loss of taste and smell, were either (a) caused or (b) aggravated by either service-connected diabetes mellitus or service-connected coronary artery disease. If hypertension is found to be service-connected, the physician should also provide an opinion as to whether the residuals from a cerebrovascular accident, to include loss of taste and smell, were (a) caused or (b) aggravated by service-connected hypertension. If aggravation is found, the baseline level of disability should be identified to the extent possible. The claims file should be provided to the physician. A complete rationale should accompany any opinion provided, to include specific discussion of the facts of this particular case. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.