Citation Nr: 21000246 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-21 627 DATE: January 4, 2021 ORDER Entitlement to service connection for a right ear hearing loss disability is denied. REMANDED Entitlement to service connection for a left ear hearing loss disability is remanded. Entitlement to service connection for a low back injury is remanded. Entitlement to service connection for hypertension, to include as due to exposure to tactical herbicide agents and as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a left ear hearing loss disability for VA purposes at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force from April 1968 to April 1972, and from November 1974 to November 1978. His awards include an Air Force Commendation Medal from his period of service in the Republic of Vietnam. In September 2018, these matters were last before the Board. At that time, the Board reopened the claims of entitlement to service connection for a low back disability and entitlement to service connection for tinnitus. The Board also granted service connection for tinnitus. The Board remanded the claims for entitlement to service connection of a low back disability, entitlement to service connection for a bilateral hearing loss disability and entitlement to service connection for hypertension, to include as due to exposure to tactical herbicide agents and as secondary to posttraumatic stress disorder (PTSD). In a December 2018 rating, the Agency of Original Jurisdiction (AOJ) administratively effectuated the Board’s grant of entitlement to service connection for tinnitus. This issue is not before the Board. In July 2020, the AOJ issued a Supplemental Statement of the Case (SSOC) addressing entitlement to service connection for a low back disability, entitlement to service connection for a bilateral hearing loss disability and entitlement to service connection for hypertension, to include as due to exposure to tactical herbicide agents and as secondary to PTSD. In August 2020, the Veteran’s representative submitted a statement in response to the SSOC, and the claims have now returned to the Board for its consideration. The Board has recharacterized the claim of entitlement to service connection for a bilateral hearing loss disability to address each ear separately. Service Connection 1. Entitlement to service connection for a left ear hearing loss disability. The Veteran filed his claim in July 2012. He was afforded a VA examination in October 2019. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC LEFT 25 25 15 25 22.5 96 Entitlement to service connection for a left ear hearing loss disability is not established. The Board acknowledges the Veteran's complaints regarding having hearing difficulties, which he is certainly competent to relate. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Nevertheless, it is clear that the diagnosis of bilateral hearing loss is not capable of lay observation, as it requires audiometric test findings. In the present case, the audiometric test results do not meet VA's threshold for considering hearing loss a disability for VA purposes in the left ear. See 38 C.F.R. § 3.385. Other than the VA examination, no evidence pertinent to a hearing loss disability indicates that the Veteran had a left ear hearing loss disability during the course of the present claim. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a right ear hearing loss disability is remanded. The Board remanded this claim in order to afford the Veteran a VA medical examination and obtain an opinion on the etiology of the claimed hearing loss disability. The Veteran was afforded an examination in October 2019, and an opinion was obtained at that time, with the examiner offering a negative etiological opinion. In support of her opinion, the examiner explained that the service treatment audiograms did not show a significant threshold shift and thus that any exposure to noise resulted in acoustic trauma. However, in its remand directives, the Board asked the examiner to address the Veteran’s contention that there were errors in the in-service audiograms because they appeared to show that his hearing had improved after 8 years of noise exposure. The examiner did not address this contention. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). Accordingly, the claim is remanded. 38 C.F.R. § 4.2. 2. Entitlement to service connection for a low back injury is remanded. VA’s duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). An examination is adequate if it takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran’s prior medical history and examinations. Stefl, 21 Vet. App. at 123. Following the Board’s remand, the Veteran was afforded a VA examination to address the etiology of his claimed low back injury. He was afforded a VA examination in September 2019, and the VA examiner found it less likely than not that a low back injury was incurred in or caused any in-service injury, event or illness. In terms of rationale, the examiner explained that there was no “in-service evaluation or treatment for back pain,” although the Veteran’s Military Occupational Specialty (MOS) and documents described chronic episodes of acute back pain. The examiner thereafter outlined a history of treatment but offered no further explanation for his opinion. The examination report is inadequate to decide the claim. The examiner’s rationale is confusing. On one hand he seems to indicate that there was no in-service event, injury or illness to the low back, but then suggests that the low back disability is related to the Veteran’s MOS, noting that the Veteran had described a history of chronic episodic low back pain. Accordingly, the examination report is returned. 38 C.F.R. § 4.2. 3. Entitlement to service connection for hypertension, to include as due to exposure to tactical herbicide agents and as secondary to service-connected PTSD is remanded. The Veteran was provided a VA examination in September 2019 to address the etiology of his hypertension. Hypertension was assessed and the examiner found it less likely than not that it was incurred in or caused by an in-service event, injury or illness. In terms of rationale, the examiner offered none that the Board can discern from a review of the report. Accordingly, the claim is remanded. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Return the claims file to the examiner that conducted the October 2019 VA examination, if available, for an addendum opinion to assess the nature and etiology of the current right ear hearing loss disability. Make the claims file available to the examiner for review of the case. If the October 2019 VA examiner is not available, the claims file must be available to another appropriate health care provider for the requested opinion. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. The examiner is asked to address the following question: Is it at least as likely as not (50/50 probability or greater) that the Veteran’s right ear hearing loss disability is a result of his service? The examiner should note that the Veteran’s exposure to hazardous noise as an aircraft maintenance technician is conceded. The examiner should review the Veteran’s in-service audiograms, to include the February 1975 audiogram that showed a threshold shift with poorer hearing at 500 and 1000. The examiner must address the Veteran’s contention that there were errors in his in-service audiograms as they appeared to show his hearing improved after 8 years of noise exposure. A full explanation must be provided for each opinion rendered. 2. Return the claims file to the examiner that conducted the September 2019 VA examination, if available, for an addendum opinion to assess the nature and etiology of the Veteran’s low back disability. Make the claims file available to the examiner for review of the case. If the September 2019 VA examiner is not available, the claims file must be available to another appropriate health care provider for the requested opinion. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. The examiner is asked to address the following question: Is it at least as likely as not (50/50 probability or greater) that the Veteran’s low back disability is a result of his service, to include overuse from his MOS as an aircraft maintenance technician? The examiner should consider the Veteran’s report of his back cramping or going out in 1976 to be credible. The examiner should note the August 2015 statement from the Veteran’s wife (married 1982) of ongoing yearly back episodes, the September 2016 statement from the Veteran’s friend that he was incapacitated in 1976, and the Veteran’s statement that he stopped receiving treatment when he did not have the funds or insurance to cover treatment in forming his or her opinion. A full explanation must be provided for each opinion rendered. 3. Return the claims file to the examiner that conducted the September 2019 VA examination, if available, for an addendum opinion to assess the nature and etiology of the Veteran’s hypertension. Make the claims file available to the examiner for review of the case. If the September 2019 VA examiner is not available, the claims file must be available to another appropriate health care provider for the requested opinion. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. The examiner is asked to address the following questions: (a.) Is it at least as likely as not (50/50 probability or greater) that his hypertension began in service? The Veteran contends it began in service due to the stress of service, including service in Vietnam (b.) Is it at least as likely as not (50/50 probability or greater) that his hypertension is a result of exposure to herbicides or insecticides? In providing this opinion, the examiner should note that the Veteran’s exposure to herbicides is conceded due to his service in the Republic of Vietnam. The Veteran has also reported that he was directly sprayed with an unknown chemical from an airplane while in Vietnam. He has stated he is unsure if the chemical was an insecticide (against mosquitos) or herbicide. A full explanation must be provided for each opinion rendered. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.