Citation Nr: 20021382 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-38 109 DATE: March 25, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension (claimed as high blood pressure) is remanded. FINDING OF FACT The Veteran’s current bilateral hearing loss did not manifest in service or within one year of service, and the most competent, credible, and probative evidence of record weighs against a finding that his hearing loss was incurred as a result of his military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to November 1965. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2016 rating decision, the RO denied service connection for hearing loss. This matter was previously before the Board in March 2019 and was remanded for a VA examination to determine the etiology of his hearing loss disability. The Board’s April 2018 remand decision has been substantially complied with by VA. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial, and not strict, compliance with the terms of the remand order is required). In a January 2017 rating decision, the RO denied service connection for hypertension. The Board notes that the Veteran initially requested a travel Board hearing with respect to his hypertension. See July 2017 VA Form 9. However, in January 2020, the Veteran submitted a statement withdrawing his Hearing request. See January 2020 Statement in Support of Claim. Accordingly, his request for a hearing is withdrawn. 38 C.F.R. § 20.704(e). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, entitlement to service connection may be established on a secondary basis to an already service-connected disability. To substantiate a claim for secondary service connection, evidence is needed to establish that the nonservice-connected current disability is either proximately due to, or the result of, a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Hearing loss The Veteran maintains that his hearing loss is related to hazardous noise exposure. See September 2016 Statement in Support of Claim, and December 2017 VA Form 9. More specifically, he reported being assigned to an evacuation hospital in service and was heading out to set up hospital beds when the Lieutenant leading unit got them lost and led them to the end of a firing range. There was artillery falling, so he had to get out of his truck and direct the trucks out of the firing range. He was exposed to artillery fire noise without the benefit of hearing protection, following which he was unable to hear, and unable to seek medical treatment for two weeks. Additionally, he relayed firing weapons also without the benefit of hearing protection in service. The Board notes that for the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in December 2019. Audiometric testing at the time yielded the following results: HERTZ 500 1000 2000 3000 4000 Average RIGHT 45 45 35 40 70 47.5 LEFT 80 75 70 75 85 76.25 The speech recognition score was 96 percent in the right ear and 96 percent in the left ear. Given the above results, the record demonstrates that the Veteran has a current hearing loss disability. 38 C.F.R. § 3.385 Regarding an inservice event, the record supports that the Veteran was exposed to hazardous noise. A review of the Veteran’s service personnel records confirms that his military occupational specialty was as a medical specialist. Further, it confirms that he earned qualification in arms with the M-1 and M-14 rifles and received an Expert Rifle Marksmanship Badge. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although the Veteran is competent to report the circumstances of his noise exposure and his subjective symptoms of decreased hearing acuity, the Veteran is not competent to provide an opinion as to whether his hearing loss became sufficiently severe to be disabling as defined by VA regulations during or within one year of his separation from active duty service or an opinion as to the etiology of his hearing loss. The Board must determine on a case-by-case basis whether a particular medical issue is within the competence of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to render an opinion as to its etiology or an opinion as to when his hearing loss became disabling as defined by VA. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Making the latter determination requires specific audiometric and speech recognition testing. Thus, to the extent that the Veteran’s lay statements express an opinion that his hearing loss is related to noise exposure during his active duty service or had its onset during active duty service or within one year thereafter, they are not competent medical opinions and they cannot be assigned any probative weight. At the December 2019 VA examination, the examiner opined that the Veteran’s hearing loss is less likely than not caused by or the result of an event in service. The examiner found normal hearing limits at entrance and separation from service, no threshold shifts at any time while in service, and the current medical literature does not support the delayed onset of noise induced hearing loss. The examiner further noted that the Veteran also has otosclerosis, which is the more likely cause of the Veteran’s hearing loss. Based on the forgoing, the Board finds that entitlement to service connection for bilateral hearing loss is denied. Further, service connection is not warranted for bilateral hearing loss on a presumptive basis as there is no competent evidence of record documenting the presence of hearing loss for VA purpose within a year of separation from service. Accordingly, as the preponderance of the evidence is against the claim, entitlement to service connection for bilateral hearing loss is denied. REASONS FOR REMAND The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to service connection for hypertension. The Veteran was last provided a VA examination in January 2017. Unfortunately, the January 2017 VA examination is inadequate for adjudicating the claim. The examiner stated that the hypertension was less likely than not incurred in or caused by the service, however she further stated that she was unable to offer a definitive opinion based on the information provided from 1963 and 1965. The Board finds this rationale speculative. The Board acknowledges that a speculative medical opinion is not per se inadequate. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). A speculative opinion is adequate if the examiner provides an explanation for that determination and indicates 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. Id. In the present case, the Veteran’s September 1963 entrance examination has a self-reported history of high blood pressure and his October 1965 separation examination has a physician’s note of a history of high blood pressure. It is unclear from the examiner’s note what information she needs to provide a definitive opinion. Therefore, the January 2017 VA opinion is inadequate for resolving the claim and a remand is necessary to obtain an addendum opinion to further develop the claim. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the Veteran’s hypertension. An examination of the Veteran is not required unless deemed necessary by the medical professional selected to offer the opinion. The claims file and a copy of this remand must be provided to and reviewed by the examiner. 2. The examiner should: (a) Opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed hypertension was caused by service. (b) The examiner should clarify if there is any speculation regarding his/her opinion. 3. The examiner must specifically address whether there is clear and unmistakable evidence that the Veteran entered service with pre-existing hypertension. If the examiner finds it clear and unmistakable that he had pre-existing hypertension, the examiner must also provide an opinion as to whether it is clear and unmistakable that the disability did not undergo a permanent worsening beyond the normal progression of the disability during active duty. A complete rationale for all opinions should be provided. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. V. Palatt, 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.