Citation Nr: 20037593 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 20-08 663 DATE: June 2, 2020 ORDER Entitlement to service connection for hypertension is granted. Entitlement to a compensable evaluation for bilateral hearing loss is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The record shows the Veteran’s diagnosed hypertension is etiologically related to exposure to tactical herbicides. 2. The record shows no worse than Level II hearing loss in the right ear, and no worse than Level I hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for entitlement to a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1961 to July 1987, with service in the Republic of Vietnam. 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). The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for hypertension Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, VA regulations provide that for a Veteran who has been exposed to an herbicide agent during military service, service connection for certain diseases will be presumed. See 38 C.F.R. § 3.309 (e). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307 (a)(6)(i). The Board observes that hypertension is not listed in §3.309(e) among those diseases for which service connection will be presumed. Thus, service connection on a presumptive basis cannot be awarded. However, on a direct basis, the Board finds the criteria for service connection are met. Initially, the Board takes judicial notice of recent findings, promulgated by the National Academies of Science, Engineering, and Medicine, demonstrating a link between hypertension and exposure to Agent Orange. This organization, in consideration of troves of medical literature published between 2014 and 2017, has concluded that sufficient evidence now exists to draw a firm conclusion with respect to the link between hypertension and Agent Orange exposure. The Board finds these conclusions sufficient to provide a nexus between the Veteran’s diagnosed hypertension and his presumed exposure to Agent Orange in service. The record shows that the Veteran has service in the Republic of Vietnam; accordingly, in-service exposure to Agent Orange is presumed. Current medical records also reflect the Veteran carries a diagnosis of hypertension and receives treatment therefor. Thus, the Board finds the criteria for entitlement to service connection for hypertension are present in this case, and the appeal is granted. 2. Entitlement to a compensable evaluation for bilateral hearing loss Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86 (a) (exceptional patterns of hearing impairment), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. The provisions of 38 C.F.R. § 4.86 (b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. The Veteran contends that his hearing loss warrants a compensable evaluation. The Veteran underwent a VA audiological examination in March 2019, where pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 35 75 70 LEFT 20 40 25 40 55 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 90 in the left ear. Based on the results of these tests, a Roman numeral II is designated for the right ear and a Roman numeral I for the left ear from Table VI of 38 C.F.R. § 4.85. Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85. The provisions of 38 C.F.R. § 4.86 (b) are not applicable as no examination on record shows simultaneous puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Thus, application of the rating schedule to the audiometric findings warrants a noncompensable rating for bilateral hearing loss, and the claim for increase must be denied. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. Although the Board regrets the additional delay, a remand of the Veteran’s service connection claim is necessary in order to afford him an adequate VA examination. The examiner who conducted the Veteran’s March 2019 VA examination indicated that although a PTSD diagnosis was not warranted, the Veteran was beset by another psychiatric diagnosis, characterizing that diagnosis as “other specified trauma and stressor related disorder.” However, later in the examination report, the examiner noted that “[n]o…psychiatric diagnoses were made.” The Board is left uncertain as to whether the examiner considered the Veteran to have a current mental diagnosis, and if so, whether that disorder bears an etiological relationship to active duty service. The Board does note that the VA examiner indicated that the Veteran’s reported fear of hostile military or terrorist activity was sufficient to support a finding of PTSD, but that testing indicated the lack of current PTSD in the Veteran. The Board finds the Veteran’s statements with respect to in-service fear of hostile military or terrorist activity while serving in the Republic of Vietnam to be credible. Further, the Board notes that the record reflects a current PTSD diagnosis. A February 2020 private treatment note lists PTSD as an active diagnosis, but contains no additional explanation of how the diagnosis was furnished, to include any stressors in contemplation of which it was furnished. On remand, a new VA examination must be conducted, and an expert medical opinion obtained as to the etiology of any diagnosed mental disorder. The VA examiner must specify whether the Veteran has a current diagnosis of PTSD, with consideration given to the listed diagnosis of record. The examiner is further directed to consider as credible the Veteran’s statements with respect to fear of hostile military or terrorist activity while serving in the Republic of Vietnam. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran’s claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Then, the AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. However, with respect to his account of in-service fear of hostile military or terrorist activity, the examiner is directed to consider the Veteran’s statements credible. The examiner should identify all current psychiatric disorders. He or she should specifically indicate whether the Veteran has PTSD or not. For each diagnosis identified other than PTSD, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein. Regarding PTSD, the examiner should consider the criteria of the DSM-V in determining whether the diagnostic criteria to support the diagnosis of PTSD has been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and the Veteran’s in-service fear or hostile military or terrorist activity. 3. Review the opinion and any examination report to ensure that it is in complete compliance with the directives of this remand. If the opinion or report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.