Citation Nr: 21063657 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-30 503 DATE: October 15, 2021 ORDER Service connection for degenerative disc disease of the lumbar spine is granted. Service connection for bilateral hearing loss is denied. REMANDED Service connection for hypertension condition is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his lumbar condition is proximately due by his service-connected feet condition. 2. The Veteran does not have left ear hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1988 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in September 2020 and remanded for additional development. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service connected disability; or, aggravated by a service connected disability. See 38 C.F.R. § 3.310 (2018); see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. See Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). 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. See 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. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. See Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Lumbar DDD The Veteran seeks service connection for his lumbar condition. In support, the Veteran reported that his lumbar condition was related to service and his service-connected conditions. See BVA hearing transcript (February 2020). The Veteran has a diagnosis of lumbar spine DDD. See VA medical examination (April 2017). Thus, the Veteran has a current condition and meets the first element of service connection. Further, the Board acknowledges that the April 2021 examiner opined that the Veteran's back condition is not related to service or his service-connected ankle disability. However, a September 2021 VA examiner, in discussing whether some of the Veteran's disabilities were related to his service-connected bilateral pes planus, also opined addressed whether the Veteran's back disability was caused by that service-connected condition. The examiner offered a detailed explanation for her medical opinion that the Veteran's lumbar condition can be proximately due, the Veteran's service-connected bilateral pes planus. Thus, resolving all doubt in the Veteran's favor, because the Veteran's back disability was caused by his service-connected bilateral pes planus, secondary service connection for back disability is Bilateral hearing loss The Veteran asserts that service connection is warranted for bilateral hearing loss due to acoustic trauma in service. See BVA hearing transcript (February 2020). For the purposes of applying the laws administered by VA, 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. In September 2020 the Board remanded the issue of entitlement to service connection for bilateral hearing loss to determine if the Veteran has a current hearing loss disability for VA compensation purposes. Subsequently, on April 2021 the Veteran was provided a VA examination. The April 2021 VA examination shows the left ear with 98 percent speech discrimination. Decibel (dB)loss at the puretone threshold of 500 Hertz (Hz) is 10, with a 20 dB loss at 1000 Hz, a 30 dB loss at 2000 Hz, a 15 dB loss at 3000 Hz, and a 15 dB loss at 4000 Hz. The right ear with 100 percent speech discrimination. Decibel (dB)loss at the puretone threshold of 500 Hertz (Hz) is 15, with a 30 dB loss at 1000 Hz, a 30 dB loss at 2000 Hz, a 20 dB loss at 3000 Hz, and a 5 dB loss at 4000 Hz. See VA medical examination (April 2021). The April 2021 VA examination shows that the Veteran does not have bilateral hearing loss for VA compensation purposes. See VA medical examination (April 2021). Further, the record does not show a previous VA examination that reflects that the Veteran had bilateral hearing loss for VA compensation purposes. See VA medical examination (April 2014). The Board acknowledges that the Veteran credibly and competently reported the Veteran's hearing problems and VA has conceded exposure to military noise. See BVA hearing transcript (February 2020). However, this finding does not satisfy the criteria for hearing loss for VA purposes. See 38 C.F.R. § 3.385. Since the April 2021 VA examination, the Veteran has not reported that his hearing loss has worsened since that time. While the Veteran is competent to report the symptoms he observes, such as decreased hearing ability, he is not competent to report that he has a hearing loss disability, because such a determination requires specific audiometric findings. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, notwithstanding his assertion that he has bilateral hearing loss disability, the audiometric evidence reflects that the Veteran does not have currently bilateral hearing loss disability for VA purposes and the claim must be denied on the basis that the Veteran does not have a current disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). As application of 38 C.F.R. § 3.385 reflects that the Veteran does not have currently bilateral hearing loss disability for VA purposes, service connection for bilateral hearing loss cannot be granted. Palczewski. REASONS FOR REMAND 3. Hypertension The Veteran reports that service connection is warranted for his hypertension condition. In support, the Veteran's reported that his condition is related to service since he had high cholesterol problems in service and shortly after his discharge, he began taking medications for his hypertension. See BVA hearing transcript (February 2020). In September 2020, the Board remanded this case to determine the nature, onset and etiology of his hypertension and if the condition was related to service or his service-connected conditions. Subsequently, on April 2021 the Veteran was afforded a VA examination and the examiner stated that the Veteran's hypertension was less likely related to service. The rationale was that there is evidence of screening cholesterol of 202 (slightly elevated, NV 200) in 1989, however although those two conditions can be linked one does not cause the other. See VA medical examination (April 2021). However, the Board finds that the examiner must clarify his statement and see if the Veteran's hypertension is proximately due, aggravated or caused by his in-service high cholesterol. Additionally, the examiner must opine if his service-connected disabilities, especially his psychiatric disability, can aggravate or cause his hypertension. Thus, this issue must be remanded. As there is no examination to determine the nature and onset of his hypertension condition, as well, if it is proximately due or aggravated by his service-connected disabilities, a remand is necessary to have the Veteran examined and for an examiner to review his claims folder and provide opinions necessary to adjudicate this appeal. The matter is REMANDED for the following action: 1. Obtain complete VA and Non-VA treatment records of the Veteran's hypertension condition. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner. The examiner must opine as to whether it is at least as likely as not that the Veteran's hypertension is related to or had its onset in service. Additionally, the examiner must opine if his hypertension condition is related to service or proximately due or aggravated by service or his service-connected conditions. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.