Citation Nr: 21002048 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-48 325 DATE: January 12, 2021 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss began during active service or within one year of discharge, or is otherwise related to an in-service injury, event, or disease. 2. Resolving reasonable doubt in the Veteran’s favor, his hypertension manifested to a compensable degree within one year of his separation from service and is not attributable to intercurrent causes. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for entitlement to service connection for hypertension are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 1. Entitlement to service connection for hearing loss The Board has reviewed the record and with regard to a present disability, the July 2013 VA examination report shows that the Veteran had hearing acuity of 40dB or greater at 500, 2000, 3000, and 4000Hz for both ears. Additionally, his speech discrimination scores on the MD CNC test were 84 percent for both ears. VA Hearing Loss and Tinnitus examination, July 2013. This constitutes bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. Thus, the first element of Shedden/Caluza has been met. With regard to an in-service event or injury, the Board’s review of the Veteran’s service treatment records is negative for any complaints of hearing loss or other ear problems. However, he has been awarded a Parachute Badge, suggesting exposure to loud noise from planes. As such, the Board will accept that he experienced in-service noise exposure and the second element of Shedden/Caluza is arguably met. However, despite the current diagnosis and in-service noise exposure, there is no evidence of a medical nexus to support a grant of service connection. The Veteran was afforded a VA examination and opinion in July 2013 to address the etiology of his audiology complaints, as noted above. The examiner found that the Veteran’s current hearing loss was not related to service because his hearing was normal at his retirement examination. The Board found this opinion inadequate under Hensley v. Brown, 5 Vet. App. 155, 157 (1993), and remanded the claim for a new VA examination and opinion in April 2018. The October 2019 VA examiner also found that the Veteran’s hearing loss was not related to his military service. VA Hearing Loss and Tinnitus examination, October 2019. She noted that his hearing was normal at retirement, but also concluded that the thresholds measured at retirement were such that a significant threshold shift due to hearing loss in service was not possible. As such, she was able to conclude that the Veteran’s hearing loss was not related to service. The Board finds the prior Hensley concerns are addressed by this opinion as the examiner relied on thresholds that could not have been significantly shifted in service, rather than just that his hearing was normal at retirement. In light of this additional explanation, the October 2019 opinion is adequate. There are no other pieces of medical evidence discussing the etiology of the Veteran’s bilateral hearing loss. Consideration has been given to the Veteran’s contentions that his current bilateral hearing loss is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of audiology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report that he had in-service noise exposure and that he currently has hearing loss, he is not competent to link those complaints to a particular diagnosis or etiology. His assertions are therefore not competent evidence of a medical nexus. Moreover, they are outweighed by the negative opinions from the VA audiologist who clearly has the relevant expertise. The Board has also considered continuity of symptomatology as hearing loss is considered a chronic disease based on 38 C.F.R. § 3.303. Service connection may be established by showing continuity of symptoms since service. 38 C.F.R. § 3.303(a); see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (holding that “the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an ‘[o]rganic disease[] of the nervous system.’“). Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of post service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptoms. Given that this condition was not noted during service, continuity of symptomatology has not been established. Moreover, as discussed above, the October 2019 examiner considered the Veteran’s contentions in providing her negative opinion. Finally, there is also no evidence of right ear or left ear hearing loss within one year of the Veteran’s discharge from service to warrant a grant of service connection on a presumptive basis. Accordingly, the Board finds that the claim of entitlement to service connection for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to service connection for hypertension The Veteran claims that his hypertension began in service. Therefore, he believes that service connection is warranted. The medical evidence reflects that the Veteran has been diagnosed with essential hypertension. See, e.g., VA Hypertension examination, March 2016. Additionally, his service treatment records (STRs) show elevated blood pressure readings. See STRs. The March 2016 VA examiner was unable to link the Veteran’s hypertension diagnosis to his military service. Specifically, he found that the Veteran’s in-service hypertension was transient and neurogenic and, therefore, not related to his current essential hypertension. He also noted that there was no history in the medical records of essential hypertension prior to 1999. Despite the negative VA opinion, the Board’s review of medical evidence indicates that service connection is warranted on a presumptive basis. Subsequent to the March 2016 VA examination and April 2018 Board remand, additional treatment records were obtained, including a record of an April 1967 hospital admission noting a history of essential hypertension. Treatment record, April 1968. Although this note is dated in April 1968, the admission referenced is from April 1967. As such, the Board concludes that this record supports a diagnosis of hypertension in April 1967, within one year of the Veteran’s May 1966 discharge from service. Although this record does not specify whether the hypertension was compensable within a year of separation from service, the Board will afford the Veteran the full benefit-of-the-doubt and assume that his hypertension was compensable within one year of separation from service. As hypertension is one of the listed chronic disabilities and the evidence suggests that the Veteran was diagnosed with compensable hypertension within one year of separation from service, the Veteran’s hypertension is presumed to be related to service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The service-connection claim for hypertension is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Accordingly, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran’s right shoulder claim was remanded in April 2018. The RO was directed to request treatment records from the Womack Army Hospital and Barksdale Air Force Hospital, as well as any federal or VA hospitals near Fort Bragg, North Carolina, in 1950 or near Barksdale between 1966 and 1968. The RO attempted to obtain records from Womack and Barksdale. But there is no indication that the RO attempted to identify nearby federal or VA hospitals or request any records therefrom. Without such an attempt, the RO has not complied with the Board’s remand directives and this claim must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for a left shoulder disability is remanded. The Veteran’s left shoulder claim was remanded in April 2018. The RO was directed to request treatment records from the Womack Army Hospital and Barksdale Air Force Hospital, as well as any federal or VA hospitals near Fort Bragg, North Carolina, in 1950 or near Barksdale between 1966 and 1968. The RO attempted to obtain records from Womack and Barksdale. But there is no indication that the RO attempted to identify nearby federal or VA hospitals or request any records therefrom. Without such an attempt, the RO has not complied with the Board’s remand directives and this claim must be remanded again. See Stegall, supra. 3. Entitlement to service connection for a low back disability is remanded. The Veteran’s low back claim was remanded in April 2018. The RO was directed to request treatment records from the Womack Army Hospital and Barksdale Air Force Hospital, as well as any federal or VA hospitals near Fort Bragg, North Carolina, in 1950 or near Barksdale between 1966 and 1968. The RO attempted to obtain records from Womack and Barksdale. But there is no indication that the RO attempted to identify nearby federal or VA hospitals or request any records therefrom. Without such an attempt, the RO has not complied with the Board’s remand directives and this claim must be remanded again. See Stegall, supra. 4. Entitlement to service connection for a right knee disability is remanded. The Veteran’s right knee claim was remanded in April 2018. The RO was directed to request treatment records from the Womack Army Hospital and Barksdale Air Force Hospital, as well as any federal or VA hospitals near Fort Bragg, North Carolina, in 1950 or near Barksdale between 1966 and 1968. The RO attempted to obtain records from Womack and Barksdale. But there is no indication that the RO attempted to identify nearby federal or VA hospitals or request any records therefrom. Without such an attempt, the RO has not complied with the Board’s remand directives and this claim must be remanded again. See Stegall, supra. 5. Entitlement to service connection for a left knee disability is remanded. The Veteran’s left knee claim was remanded in April 2018. The RO was directed to request treatment records from the Womack Army Hospital and Barksdale Air Force Hospital, as well as any federal or VA hospitals near Fort Bragg, North Carolina, in 1950 or near Barksdale between 1966 and 1968. The RO attempted to obtain records from Womack and Barksdale. But there is no indication that the RO attempted to identify nearby federal or VA hospitals or request any records therefrom. Without such an attempt, the RO has not complied with the Board’s remand directives and this claim must be remanded again. See Stegall, supra. 6. Entitlement to service connection for a bilateral ankle disability is remanded. The Veteran’s bilateral ankles claim was remanded in April 2018. The RO was directed to request treatment records from the Womack Army Hospital and Barksdale Air Force Hospital, as well as any federal or VA hospitals near Fort Bragg, North Carolina, in 1950 or near Barksdale between 1966 and 1968. The RO attempted to obtain records from Womack and Barksdale. But there is no indication that the RO attempted to identify nearby federal or VA hospitals or request any records therefrom. Without such an attempt, the RO has not complied with the Board’s remand directives and this claim must be remanded again. See Stegall, supra. The matters are REMANDED for the following actions: 1. Request the Veteran’s medical records from all relevant organizations, including the National Personnel Records Center (NPRC) and all federal/military/VA hospitals that were on or near Fort Bragg, North Carolina in 1950 and on or near Barksdale Air Force Base from 1966 to 1968. IF IT IS DETERMINED THAT ANY OF THE VETERAN’S RECORDS ARE FIRE-RELATED, A FORMAL FINDING MUST BE MADE AND ASSOCIATED WITH THE CLAIMS FILE. Document all requests for information, as well as all responses, in the claims file in compliance with 38 C.F.R. § 3.129(c)(2). 2. Thereafter, and following any additional development deemed necessary, send the Veteran’s claims file to an appropriate examiner to provide an addendum opinion regarding the nature and etiology of his bilateral shoulder, low back, bilateral knee, and bilateral ankle disabilities. The Veteran may be recalled for examination if deemed necessary. Note that the Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. The examiner must identify all of the diagnosed right shoulder, left shoulder, low back, left knee, right knee, and bilateral ankle conditions, including those that have resolved during the appeals period (January 2012 to the present). For each identified diagnosis, the examiner should state whether such a diagnosis at least as likely as not began in or is related to the Veteran’s time in service. SPECIFICALLY, THE EXAMINER SHOULD OPINE WHETHER THE VETERAN’S REPORTED IN-SERVICE PARACHUTE JUMPS COULD HAVE RESULTED IN HIS CURRENT RIGHT SHOULDER, LEFT SHOULDER, LOW BACK, LEFT KNEE, RIGHT KNEE, AND/OR BILATERAL ANKLE DISABILITIES. The examiner MUST address the Veteran’s history of multiple parachute jumps in service, as evidenced by his Parachute Badge, and state whether his current disabilities are the type of conditions that result from multiple parachute jumps. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (Continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.