Citation Nr: 20021152 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-55 238 DATE: March 24, 2020 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT A bilateral hearing loss disability has been shown to be causally related to the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1154; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to May 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2020. A transcript of the hearing is of record. 1. Entitlement to service connection for a bilateral hearing loss disability. Generally, to establish service connection a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed in service injury or disease is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service injury. 38 U.S.C. § 1154(b). A July 2013 VA audiological examination reflects that the Veteran has bilateral hearing loss considered to be disabling for VA purposes. 38 C.F.R. § 3.385. As to an in-service injury or disease, the Veteran has stated that while serving as a helicopter door gunner he was exposed to a significant amount of noise from helicopter engines and gunfire. The Veteran further reported that he noticed decreased hearing acuity following his exposure to these noise sources. The Veteran is competent to report such exposure and decreased hearing acuity, and there is no evidence that the statements are not credible. Jandreau, 492 F.3d 1372. The Veteran’s service treatment records do not contain complaints of or treatment for bilateral hearing loss. However, the Veteran’s DD-214 reflects that the Veteran was awarded the Air Medal with a “V” Device for valor, which establishes that the Veteran engaged in combat. 38 U.S.C. § 1154(b). As such, the Veteran’s statements alone are sufficient to establish the occurrence of the alleged in-service injury, as exposure to helicopter noise and gunfire is consistent with the nature of the Veteran’s service. Id. Therefore, an in-service injury has been shown. Turning to the presence of a nexus, the Veteran has consistently stated that he noticed decreased hearing acuity in service which has persisted since his separation. The Veteran is competent to report decreased hearing acuity and its onset date, and there is no evidence that his statements are not credible. Jandreau, 492 F.3d 1372. As such, the Board finds that these statements are entitled to significant probative weight as to the presence of a nexus. In July 2013, VA obtained a medical opinion concerning the etiology of the Veteran’s hearing loss. The examiner noted that the Veteran was exposed to noise during combat but stated that it was less likely than not that the Veteran’s hearing loss was due to service. The examiner noted that the Veteran’s separation examination was within normal limits, whether under the American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. The examiner also noted that the Veteran had occupational and recreational noise exposure following service. However, the examiner did not as part of the rationale consider the Veteran’s assertions that he has experienced decreased hearing acuity since his period of active service, which would mean that the hearing loss preceded the Veteran’s post-service occupational and recreational exposure. Dalton v. Peake, 21 Vet. App. 23 (2007). As such, the July 2013 opinion is inadequate and entitled to no probative weight. VA treatment records reflect on-going audiology appointments, but no opinions concerning the etiology of the Veteran’s hearing loss. As such, the records are entitled to no probative weight with respect to a nexus. Based on the foregoing, the only probative evidence of record is the Veteran’s statements that he has experienced continuous hearing loss since his combat service in Vietnam. While the July 2013 examiner provided a negative opinion, the examiner failed to address the Veteran’s statements concerning continuous symptoms since his period of service, a factor that was particularly important since the examiner partly relied on post-service noise exposure to support the conclusion that the hearing loss was not due to service. As such, in the interest of affording the Veteran the full benefit of the doubt the Board finds that the evidence of record shows that the Veteran has continuously experienced hearing loss since his in-service noise exposure. Therefore, service connection for a bilateral hearing loss disability is granted. 38 C.F.R. §§ 3.102, 3.303(b). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability. During his January 2020 hearing testimony before the undersigned, the Veteran stated that he had received continuous VA treatment for his right knee disability since shortly after his separation from service. However, the earliest records associated with the file date from February 1997. As there is an indication there may be further outstanding VA treatment records, a remand is necessary so that appropriate attempts may be made to obtain them. 38 C.F.R. § 3.159(c)(1). 2. Entitlement to service connection for hypertension. Treatment records during the period on appeal reflect that the Veteran has been diagnosed with hypertension, and the Veteran is currently service connected for PTSD. Further, the Veteran indicated during his January 2020 testimony that he had been told by medical professionals that his hypertension was due to his PTSD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the foregoing, the Board finds that a remand is necessary to obtain a medical opinion concerning the etiology of the Veteran’s hypertension. The matters are REMANDED for the following action: 1. Make all necessary efforts to obtain any outstanding VA treatment records from May 1968 to February 1997, to include from the Danville VA Medical Center. 2. If additional VA treatment records are obtained and associated with the file, obtain an addendum opinion from the examiner who provided the September 2016 VA knee examination, or another appropriate medical professional if the examiner is unavailable. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the right knee disability is causally related to the Veteran’s active service? A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hypertension. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that hypertension was caused by PTSD? b) If not, is it at least as likely as not (a fifty percent probability or greater) that the hypertension was aggravated (worsened) by PTSD? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by the service-connected disability. c) Is it at least as likely as not (a fifty percent probability or greater) that the hypertension is causally related to the Veteran’s active service, to include exposure to herbicide agents? A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jones v. Shinseki, 23 Vet. App. 382 (2010). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.