Citation Nr: 21064158 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-15 151 DATE: October 19, 2021 ORDER 1. Entitlement to service connection for bilateral hearing loss is denied. REMANDED 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for nephrosclerosis is remanded. FINDING OF FACT A hearing loss disability in either ear was not manifested during the Veteran's service, or to a compensable degree within one year following his discharge from service, and such disability is not shown to be etiologically related to his service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 1964 to February 1966. These matters are before the Board of Veterans' Appeals (Board) on appeal of a July 2013 Department of Veterans Affairs (VA) rating decision. In October 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In February 2019 and September 2020, the matters were remanded for additional development. [A June 2021 rating decision awarded service connection for sleep apnea, rated 50 percent effective July 16, 2013, fully resolving the matter of service connection for sleep apnea.] The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for bilateral hearing loss is denied. At the outset, the Board finds there has been substantial compliance with the April 2018 remand directives pertaining to service connection for bilateral hearing loss. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include sensorineural hearing loss (SNHL), as an organic disease of the nervous system) may be presumed to be service-connected if manifested to a compensable degree within a specified period of time following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran contends that his hearing loss resulted from exposure to noise trauma in service. While his service treatment records (STRs) document treatment for otitis media and impacted wax (see July 1964 and August 1964 clinical records), they are silent for complaints, findings, treatment, or diagnosis of hearing loss. The Veteran's military occupational specialty (MOS) was combat engineer. On February 1966 service separation examination, a hearing loss disability was not noted; in a corresponding report of medical history, the Veteran reported he experienced hearing loss and running ears. Audiometry showed that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 Right 0 0 0 N/A 0 Left 0 0 0 N/A 0 On June 2010 VA audiological examination, the Veteran reported that after service he worked as a surveyor and road construction inspector. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 30 30 50 70 85 Left 30 30 55 75 80 The examiner noted that the Veteran reported exposure to noise in service, and that he did not have significant exposure go noise in his postservice life. The examiner opined that his hearing loss and tinnitus were less likely than not related to service, noting that there was no evidence of hearing loss or a significant threshold shift in his STRs. The examiner noted that his STRs only show treatment for an episode of otitis media, which resolved as there was no mention of this condition on discharge examination or a current diagnosis of otitis media. In a July 2018 statement in support of claim, the Veteran related that he went to a VA medical facility in 1973 due to hearing issues and was told that he would need to seek treatment from a private physician. He added that he began seeking treatment for ear infections with a private doctor in 1966, and reported the private doctor diagnosed a perforated eardrum, which the provider attributed to excessive noise in service. The February 2019 Board remand instructed development for private treatment records (with the Veteran assisting by identifying treatment he received and providing authorizations to obtain such records). A September 2019 VA letter to the Veteran requested him to identify all audiological treatment providers, and to submit authorizations for VA to obtain records from any private providers. He did not respond; therefore, it is assumed that no such records exist (or that any existing records do not support his claim). Regardless, VA cannot obtain those records for consideration without his authorization. On December 2019 VA audiological examination, the Veteran reported his hearing loss began in 1964. Bilateral sensorineural hearing loss (SNHL) was diagnosed. The examiner noted that the Veteran's military occupational specialty (MOS) of combat engineer has a high probability of noise exposure. The Veteran reported he was a stake placer, inspector, and surveyor after service; he denied exposure to occupational or recreational noise after service. The examiner opined that the Veteran's bilateral hearing loss is less likely related to service; however, he also opined he was unable to provide an exact etiology for the hearing loss without resort to mere speculation. He noted alternative etiologies could include age and recreational/occupational noise exposure (which the Veteran notably denied having postservice). The February 2019 and September 2020 Board remands ordered development for any outstanding VA treatment records, specifically including any records of treatment at McAllen VA medical center (VAMC) in 1973. In January 2021, VA received a negative response from McAllen VAMC, indicating that no archived records were located. VA conducted an exhaustive search for the missing records and has determined none are available. See January 29, 2021 memo regarding "Formal Finding of Unavailability" (documenting VA's efforts to locate records, and finding that all efforts to obtain them were exhausted, with further attempts deemed futile). On February 2021 VA audiological examination, the Veteran reported his hearing became muffed for a few days in 1964 after firing a 50-caliber machine gun. He reported that following separation from service he worked for 29 years for a highway department, where he experienced hours of exposure to machine noise from rebuilding roads without hearing protection. The examiner opined that his current bilateral hearing loss is less likely related to service, noting his hearing was within normal limits at separation from service and he was exposed to hours of machine noise without hearing protection for 29 years following separation. The examiner acknowledged the Veteran's exposure to hazardous noise in service and in his post-service occupation. Citing to clinical treatise, the examiner explained that once the exposure to noise is discontinued, there is no significant progression of hearing loss as a result of that noise exposure; previous noise-induced hearing loss does not make the ear more sensitive to future noise exposure; and continuous noise exposure over the years is more damaging than interrupted exposure to noise, which permits the ear to rest. On June 2021 VA audiological examination, another examiner noted that the Veteran's military occupational specialty (MOS) of combat engineer has a high probability of noise exposure. The examiner opined that Veteran's bilateral hearing loss is less likely related to service, noting he maintained normal hearing sensitivity over the course of his service and no significant permanent threshold shifts were documented. The examiner reported the Institute of Medicine concluded that based on current knowledge of cochlear physiology, there is insufficient scientific evidence for delayed-onset of hearing loss secondary to military noise exposure. The examiner noted hearing loss should occur at the time of the exposure and there is insufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss can develop years after military noise exposure. The examiner stated that if hearing is normal on discharge AND there is no permanent significant threshold shift greater than normal progression and test re-test variability during military service, then there is no basis on which to conclude that a current hearing loss is causally related to military service. The examiner opined that the Veteran's current bilateral hearing loss is related to the normal aging process that happens to everyone no matter of their previous history of noise exposure. It is not in dispute that the Veteran was exposed to loud noise in service and has a current bilateral hearing loss disability. What remains necessary to substantiate this claim is that the bilateral hearing loss disability is etiologically related to his service and the exposure to noise therein. The evidence does not show that a hearing loss disability was manifested in service. The Board notes the Veteran reported experiencing hearing loss on his February 1966 report of medical history. Although he is competent to report his perception of difficulty hearing, he cannot by his own opinion establish that he has or had a hearing loss disability, as under governing regulation that must be shown by specified testing conducted by a state-licensed audiologist. Notably, his STRs, including his February 1966 separation examination and audiometry report, are silent for complaints, treatment, findings, or diagnoses pertaining to hearing loss. Likewise, a hearing loss disability is not shown to have been manifested within a year following the Veteran's separation from service, and postservice continuity of a SNHL disability is not shown. A hearing loss disability (in each ear) was initially found by regulation-specified (see 38 C.F.R. § 4.85) audiometry in 2010, over 40 years after the Veteran's separation from service. Accordingly, service connection for the bilateral hearing loss on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112, or based on continuity under 38 C.F.R. § 3.303(b), is not warranted. In the absence of evidence of onset in service and continuity since, whether a current hearing loss disability may be etiologically related to remote service (and exposure to noise therein) is a medical question that is beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. The Veteran is a layperson, and his own opinion in the matter is not competent evidence in the matter. The preponderance of the competent (medical) evidence is against a finding that the Veteran's current bilateral hearing loss is etiologically related to his service. The Board finds the opinions by the December 2019, February 2021, and June 2021 VA examiners cumulatively probative and persuasive. All three providers, who are medical professionals competent to offer the opinions, acknowledged the Veteran's exposure to hazardous noise in service and opined that his current hearing loss is less likely than not related to service. The February and June 2021 providers cited to the absence of a change of his hearing acuity (threshold shift) in service and supporting medical literature in reaching their conclusions and included adequate rationale for the conclusion reached. The February and June 2021 VA examiners' opinions reflect familiarity with the Veteran's entire record and identify an alternate likely known etiology for the current hearing loss (that it is likely related to the normal aging process or to 29-year post-service history of exposure to road-building machine noise without hearing protection). [The Board acknowledges the June 2010 VA examiner similarly opined that tinnitus is unrelated to service and that the Board granted service connection for tinnitus. However, that grant was based on evidence of onset in service and continuity thereafter and did not require a medical opinion to establish a nexus between remote noise exposure and his current disability. Continuity of a hearing loss disability since service is simply not shown.] The December 2019, February 2021, and June 2021 VA opinions are probative evidence in the matter. The Veteran has not submitted any competent (medical opinion or treatise) evidence to the contrary, and the Board finds them persuasive. The preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss is, or may be, etiologically related to his service. Accordingly, the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 56. REASONS FOR REMAND 2. 3. Entitlement to service connection for hypertension and nephrosclerosis. The September 2020 Board remand ordered development for a VA examination to determine the likely etiology of the Veteran's hypertension, specifically whether it was caused or aggravated by his service-connected ischemic heart disease (IHD) or posttraumatic stress disorder (PTSD). On March 2021 VA examination, the Veteran reported that his hypertension became manifest 25 years ago, and that he had strokes in 1998 and 2010. The examiner opined that hypertension is at least as likely as not related to his service-connected IHD, noting that medical literature describes how IHD can cause the heart to work harder to pump blood through the heart out to the body and can cause hypertensive heart disease. The examiner noted that, while there are studies showing a correlation between PTSD and hypertension, there are no definitive studies showing a pathophysiological relationship between hypertension being caused by PTSD. The examiner did not address whether his hypertension was aggravated by the service-connected PTSD. In an August 2021 addendum opinion (to reconcile medical evidence showing a diagnosis of hypertension existing prior to the diagnosis 2015 diagnosis of IHD), the March 2021 examiner revised her opinion and opined his hypertension is less likely than not caused by or aggravated by the service-connected IHD, noting hypertension pre-existed the diagnosis of IHD and has been controlled with medication before and after his CAD diagnosis. The examiner still did not address whether hypertension was aggravated by the Veteran's service-connected PTSD. As the opinion is not fully responsive to the Board's remand directives, corrective action is necessary. See Stegall, 22 Vet. App. at 271. The Board notes that the record raises an alternative theory of entitlement (that his Veteran's hypertension is related to his exposure to herbicide agents) and that he has been awarded service connection for IHD based on such exposure. See 2013 notice of disagreement and February 2019 Board decision. While hypertension is not listed as a presumptive disease due to herbicide agent exposure, entitlement to service connection may still be established on a direct basis. See 38 C.F.R. § 3.309 (e), Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Notably, the National Academy of Sciences, in Veterans and Agent Orange: Update 11 (2018), concluded that there is sufficient evidence of an association between exposure to herbicides and hypertension. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). Such evidence indicates that the Veteran's hypertension may be associated with his presumed in-service herbicide agent exposure, and requires development for a medical opinion that address the direct service connection theory of entitlement in this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, development for a medical advisory opinion addressing this theory of entitlement is necessary. The claim of service connection for nephrosclerosis is premised on a secondary (to hypertension) service connection theory of entitlement. Therefore, it is inextricably intertwined with the hypertension claim being remanded, and consideration of that issue must again be deferred pending resolution of the claim of service connection for hypertension. The matters are REMANDED for the following: Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and an advisory medical opinion regarding the etiology of his hypertension (and nephrosclerosis, if indicated). On review of the record, the consulting provider should: (a.) Identify the likely etiology for the Veteran's hypertension. Is it at least as likely as not (a 50 percent or greater probability) that it is etiologically related to his service (to include as due to exposure to Agent Orange/herbicide agents therein)? The rationale provided must address applicability of the November 2018 NAS finding upgrading the relationship between hypertension and herbicide exposure from "limited or suggestive" to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). (b.) If hypertension is found to not be directly related to service, opine further whether it is at least as likely as not that it was caused or aggravated by (increased in severity due to) his service-connected disabilities (specifically IHD or PTSD). [The opinion must address aggravation.] (c.) If hypertension is found to not have been caused, but to have been aggravated, by a service-connected disability(ies), to the extent possible identify the degree of hypertension impairment that is due to such aggravation. (d.) If hypertension is determined to be unrelated to service/exposure to herbicide agents therein and to not have been caused or aggravated by a service-connected disability, identify the etiology for hypertension that is considered to be more likely (and explain why that is so). (e.) If, and only if, the Veteran's hypertension is determined to be service connected, confirm that the diagnosis of nephrosclerosis shown in the evidence in the record (reconciling the conflicting medical evidence already of record in the matter)., (f.) Identify the likely etiology of any diagnosis of nephrosclerosis found. Specifically, is it at least as likely as not that it was either caused or aggravated by (increased in severity due to) the Veteran's hypertension? [The opinion must address aggravation.] (g.) If nephrosclerosis is found to not have been caused, but to have been aggravated, by hypertension, to the extent possible identify the degree of hypertension impairment that is due to such aggravation. (h.) All opinions must include rationale that cites to supporting clinical data and medical principles. The rationale should specifically include comment on (expression of agreement or disagreement with) the opinions provided by the March/August 2021 VA examiner and opinion-provider. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.