Citation Nr: 21062409 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-21 766 DATE: October 7, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for hypertension to include as due to herbicide exposure and as secondary to service-connected disease or injury is remanded. FINDINGS OF FACT 1. A bilateral hearing loss disability was not manifest during service or within one year of separation and is not otherwise related to service therein, to include noise exposure. 2. Tinnitus was not manifest during service or within one year of separation and is not otherwise related to service therein, to include noise exposure. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred or aggravated during service, nor may a sensorineural hearing loss (organic disease of the nervous system) be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). 2. Tinnitus was not incurred or aggravated during service nor may tinnitus (organic disease of the nervous system) be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to March 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2014 and March 2017 rating decisions. The Veteran testified before Veterans Law Judge (VLJ) Hyland at a Board hearing in December 2018 as well as before VLJ Schwartz at a Board hearing in March 2021 regarding the issues on appeal. Transcripts of these hearings have been associated with the claims folder. As there have been two hearings by two separate VLJs on the issues on appeal, a panel decision is necessary for final adjudication of the claims. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the United States Court of Appeals for Veterans Claims (Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Id. By law, an appeal can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102 (2012). Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. Under these circumstances where a "claimant's appeal is assigned to a Board panel in a piecemeal fashion," the Court held in Arneson that the "claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case." Arneson, 24 Vet. App. at 386. This does not mean that the hearing must be held before every member of the panel at the same time, but rather "only that [the appellant] be afforded the opportunity to be heard...by every panel member who will decide his case." Id. In June 2021, the Veteran was afforded an opportunity to testify at a third hearing. However, the Veteran did not respond to this letter indicating that he requested a third hearing. Therefore, the Board will adjudicate the matter at hand. The Board remanded the bilateral hearing loss disability and tinnitus claims in September 2019 and also remanded the hypertension claim in January 2020. The Veteran's claims folder has returned to the Board for further appellate consideration. In January 2020, the Board also remanded a claim of service connection for erectile dysfunction. In a subsequent rating decision dated September 2020, this claim was granted. In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). Service connection for a bilateral hearing loss disability and tinnitus Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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 between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including organic disease of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran has described onset of his hearing loss and tinnitus due to noise exposure during active service, to include as from performing his duties as a boiler technician. See, e.g., the March 2021 Board hearing transcript page 2. The Veteran's service treatment records are absent complaints of or treatment for hearing loss or tinnitus. However, service records show the Veteran's military occupational specialty (MOS) was a boiler technician. Therefore, his reports of in-service noise exposure are consistent with his duties. On December 1970 examination prior to the Veteran's service enlistment as well as the Veteran's service separation examination dated March 1973, puretone thresholds in each ear were not recorded. However, whispered voice hearing was recorded as 15/15 in each ear for both examinations. The Veteran was provided a VA audiological examination in December 2019. The audiological evaluation revealed a bilateral hearing loss disability for VA evaluation purposes. Puretone threshold during the VA examination was 40 dB or greater at 2000 Hz, 3000 Hz, and 4000 Hz in each ear. Accordingly, the Veteran meets the regulation criteria for a bilateral hearing disability under 38 C.F.R. § 3.385. Regarding the Veteran's tinnitus, he has reported a current tinnitus but the record shows varying reports of onset. Specifically, during the December 2018 Board hearing, he reported that he has "always" had it, but during the March 2021 Board hearing, he could not identify a postservice onset. See the December 2018 Board hearing transcript, page 11; see also the March 2021 Board hearing transcript, page 4. Further, he reported during the December 2019 VA examination that his tinnitus had lasted for thirty years, "perhaps" longer. Also, during a February 2014 VA audiological examination, he reported tinnitus for the past 20 years. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran's current bilateral hearing loss disability and tinnitus are related to his service. Specifically, the December 2019 VA examiner concluded after examination of the Veteran and review of the Veteran's medical history that it is less likely than not that the Veteran's bilateral hearing loss disability and tinnitus are related to service, to include the Veteran's reported in-service noise exposure. The VA examiner's rationale for his conclusion was based on an audiological examination of the Veteran as well as his finding that while the Veteran had in-service noise exposure, the Veteran denied hearing loss on service reports of medical history dated April 1973, January 1975, and March 1976. Moreover, the examiner did not document a finding of in-service hearing loss. The examiner additionally opined that the Veteran's tinnitus is at least as likely as not associated with the bilateral hearing loss disability, as tinnitus is known to be a symptom associated with such. The December 2019 VA examination was based on upon thorough review of the record and analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the VA examiner's opinion is consistent with the Veteran's documented medical history, which is absent any report of symptomatology consistent with a bilateral hearing loss disability or tinnitus for many years after active service. The examiner also noted the Veteran's in-service noise exposure which he determined to be less likely as not related to the current bilateral hearing loss disability and tinnitus. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion that his current bilateral hearing loss disability and tinnitus are not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claims. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). To the extent the Veteran himself asserts his current bilateral hearing loss disability and tinnitus are related to his service, the Veteran is competent to report that he has a current diagnosis for VA evaluation purposes (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, hearing loss and tinnitus were not noted during service. Moreover, he denied hearing loss during service reports of medical history dated April 1973, January 1975, and March 1976. Indeed, the January 1975 and March 1976 service examinations indicate normal audiological findings. Also, as discussed above, the Veteran has reported varying dates as to the onset of his tinnitus. As such, the Board finds that the Veteran did not have characteristic manifestations sufficient to identify the chronic disease entity during service or within one year of separation. 38 C.F.R. § 3.303(b). Also, the lay evidence regarding longstanding hearing loss and tinnitus is inconsistent with the normal service audiological examinations. Further, the service examinations are more credible and probative than his after-the-fact lay assertions. We conclude that the normal service audiological examinations are far more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must therefore find that the Veteran's statements with regard to a nexus between his bilateral hearing loss disability and tinnitus and service to be of minimal probative value and outweighed by the VA opinion, prepared by a skilled neutral professional. The preponderance of the evidence is against the claims and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2020). REASONS FOR REMAND Service connection for hypertension The Veteran contends that he has hypertension that is related to service or is alternatively secondary to his service-connected type II diabetes mellitus. See the Veteran's October 2020 Informal Hearing Presentation. Regarding the Veteran's theory of service connection on a secondary basis, the Board acknowledges a June 2020 VA examination for the Veteran's diabetes mellitus in which the examiner opined that the Veteran's hypertension is not caused or aggravated by the diabetes. However, the examiner did not provide a rationale for this finding. Moreover, there is no other medical opinion of record as to whether the Veteran's hypertension is caused or aggravated by the diabetes. In light of the foregoing, the Board finds that on remand, a medical opinion should be obtained as to whether the Veteran's hypertension is caused or aggravated by the type II diabetes mellitus. The matter is REMANDED for the following action: 1. Forward the Veteran's claims folder to an appropriate medical professional for an opinion as to the etiology of his hypertension. The claims file must be made available to the examiner for review. If the examiner determines that an opinion cannot be rendered without examination of the Veteran, then the Veteran should be scheduled for an examination. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is caused or aggravated by his service-connected type II diabetes mellitus or any service connected disease or injury. If the examiner finds that the hypertension is aggravated by the service-connected diabetes or other disorder, then he/she should quantify the degree of aggravation, if possible. A rationale for all opinions expressed should be provided. 2. Review the claims file to ensure that all of the foregoing requested development is completed and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals M. HYLAND Veterans Law Judge Board of Veterans' Appeals H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.