Citation Nr: 21065553 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 12-11 137 DATE: October 26, 2021 ORDER Entitlement to service connection for hypertension is granted. From November 20, 2009 to March 1, 2011 an initial rating of at least 10 percent for bilateral hearing loss is granted. From March 1, 2011 to July 14, 2016, an initial rating of at least 20 percent for bilateral hearing loss is granted. From July 14, 2016, an initial rating of at least 40 percent for bilateral hearing loss is granted. REMANDED Entitlement an initial rating in excess of 10 percent for hearing loss prior to March 1, 2011, and thereafter in excess of 20 percent prior to July 14, 2016, and thereafter in excess of 40 percent, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran had active service in Vietnam and is presumed to have been exposed to herbicide agents in service. 2. The Veteran's hypertension was proximately due to presumed exposure to herbicide agents in service. 3. From November 20, 2009 to March 1, 2011, hearing loss was manifested by at least level VI hearing acuity in the right ear and level III hearing acuity in the left ear. 4. From March 1, 2011 to July 14, 2016, hearing loss was manifested by at least level VI hearing acuity in the right ear and level V hearing acuity in the left ear. 5. From July 14, 2016, hearing loss was manifested by at least level VI hearing acuity in the right ear and level VIII hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension are met. 38 U.S.C. §§ 1110, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. From November 20, 2009 to March 1, 2011, the criteria for an initial rating of at least 10 percent for hearing loss are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. From March 1, 2011 to July 14, 2016, the criteria for an initial rating of at least 20 percent for hearing loss are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. From July 14, 2016, the criteria for an initial rating of at least 40 percent hearing loss are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1966 to January 1968, including service in the Republic of Vietnam. He died in September 2016. The appellant is his surviving spouse, and she has been substituted for the Veteran for purposes of processing his claims pending at the time of his death to completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and January 2011 rating decisions by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In May 2015, the Board denied entitlement to service connection for hypertension and remanded other issues, including entitlement to an initial compensable rating for left ear hearing loss and entitlement to service connection for right ear hearing loss. The Veteran appealed the May 2015 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In January 2016, the CAVC granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA (Parties), vacated the May 2015 Board decision insofar as it denied entitlement to service connection for hypertension, and remanded this matter to the Board for compliance with the JMPR instructions. The Parties to the JMPR agreed that the Board erred when it determined that the Veteran was not entitled to a VA examination in connection with his service connection claim, as the Board did not analyze whether an examination was warranted regarding whether hypertension was due to presumed exposure to Agent Orange. The Parties specifically cited to a 2010 National Academy of Sciences (NAS) report that concluded that there was limited or suggestive evidence of an association between exposure to herbicide agents and hypertension. In April 2016, the Board remanded the issue of entitlement to service connection for hypertension for compliance with the JMPR instructions. In August 2020, the Board again remanded these matters. With respect to the claim of entitlement to service connection for hypertension, it determined that the medical opinion secured was inadequate, as the examiner's rationale was premised on the fact that hypertension is not a disease presumptively associated with exposure to herbicide agents. The Board remanded the issue of entitlement to service connection for right ear hearing loss to secure an adequate medical opinion. The Board deferred action on the issues of entitlement to a compensable rating for hearing loss and entitlement to a TDIU. In June 2021, the AOJ granted entitlement to service connection for right ear hearing loss. Thus, the appeal as to that issue has been resolved in full. In August 2021, the Board again remanded the issue of entitlement to service connection for hypertension, as the May 2021 examiner did not discuss the NAS report, as required by the JMPR directives. The Board also deferred action on the issue of entitlement to a TDIU. However, the Board did not address entitlement to an increased rating for hearing loss. This issue has been added for appellate consideration, as it is properly before the Board. As discussed below, the Board cannot adjudicate the appeal as to entitlement to a TDIU at this time and must defer action on part of the increased rating claim on appeal. The Board has bifurcated the increased rating claim so as to issue a partially favorable decision without further delay. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim is generally within the Board's discretion). 1. Entitlement to service connection for hypertension prior to the Veteran's death is granted. Unfortunately, the medical opinion secured in response to the August 2021 Board remand directives is also inadequate. In this regard, the September 2021 examiner noted a recent version of the NAS report that concluded that there is sufficient evidence of an association between hypertension and herbicide agents, and then stated that "I can only speculate at the source of the Veteran's hypertension condition which is consistent with research presented here that states that [the] majority of cases of hypertension do no[t] have a clear[ly] identified etiology." See September 2021 Medical Opinion. This opinion is inadequate because it does not attempt to address the specifics of the Veteran's hypertension, and thus it has no probative value either for or against the claim. Regrettably, the claim of entitlement to service connection for hypertension has been pending since 2009 more than a decade. This appeal has been before the CAVC and remanded by the Board three times. Despite exhaustive attempts to develop evidence to decide the appeal, the Board has been unable to secure an adequate medical opinion. The present situation is akin to the facts in the recent CAVC case Andrews v. McDonough, 34 Vet. App. 216 (2021). There, the Board had likewise been unable to secure an adequate medical opinion despite multiple CAVC and Board remands. Moreover, there was positive evidence of record in favor of the claim. The CAVC held that it was inappropriate to once again remand the appeal solely for the purpose of developing evidence to deny the claim. Here, additional efforts to develop evidence as to the issue of entitlement to service connection for hypertension are likely to be fruitless, and thus the Board will issue a decision on the present record. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Prior to his death, the Veteran took medication for hypertension. See March 24, 2016 VA Treatment Note. The Board concedes a current diagnosis of hypertension for VA compensation purposes. Moreover, the Veteran had active service in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. See DD Form 214. Thus, the remaining question is whether the Veteran's hypertension was related to exposure to herbicide agents. Hypertension is not one of the disabilities listed in VA regulations as presumptively caused by herbicide agent exposure. See 38 C.F.R. § 3.309(e). Thus, medical evidence establishing a causal link between hypertension and herbicide agent exposure is necessary to grant the claim. There is sufficient positive evidence within the VA's constructive possession to grant the claim. Specifically, the January 2016 JMPR identified a NAS report indicating possible evidence of an association between herbicide agents and hypertension, and the September 2021 examiner referenced a more recent NAS report. The 2014 NAS Report (2014 NAS Update) found "limited or suggestive evidence of association" between hypertension and herbicide agent exposure. In a 2018 NAS Update, hypertension was elevated from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. See September 2021 Examination Report; see also Veterans and Agent Orange: Update 11 (2018), available at https://www.nap.edu/read/25137/chapter/1, pages 465, 560, 565 (last accessed October 26, 2021). According to NAS, the "sufficient evidence of an association" category indicates that there is enough epidemiologic evidence "to conclude that there is a positive association" between hypertension and herbicide exposure. Id. at 565. The Board takes judicial notice of the 2018 NAS Update finding that there is sufficient epidemiologic evidence "to conclude that there is a positive association" between hypertension and herbicide exposure. See Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012) (allowing for taking of judicial notice of facts of universal notoriety that are not subject to reasonable dispute); Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed. R. Evid. 201(b)). The 2014 and 2018 NAS reports are within the Board's constructive possession, as these reports have been specifically identified in the record and are highly relevant to this matter. See Euzebio v. McDonough, 989 F.3d 1305, 1321-22 (Fed. Cir. 2021); see also Garcia v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1453, 2021 WL 3625401, No. 18-2245, at *3 (Aug. 17, 2021) (applying Euzebio to determine that the VA had constructive possession of the 2014 NAS Update). The same logic that applied in Euzebio and Garcia can be applied here to the 2018 NAS Update. Thus, the only probative evidence of record as to the etiology of the Veteran's hypertension is the 2018 NAS report. There is no probative evidence at all weighing against the claim. Thus here, as in Andrews, "[r]egardless of the relative probative value of the evidence supporting [a nexus], it at least matches the zero evidence" against the claim. Andrews, slip opinion at *23. Critically, the evidence of record is now at least in equipoise as to every element of the claim. Thus, the appeal as to this issue is granted. 2. From November 20, 2009 to March 1, 2011 an initial rating of 10 percent, and thereafter prior to July 14, 2016 an initial rating of 20 percent, and thereafter an initial rating of 40 percent, for hearing loss prior to the Veteran's death is granted. Prior to his death, the Veteran was in receipt of an initial noncompensable rating for left ear hearing loss under 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. In June 2021, the AOJ granted service connection for right ear hearing loss and assigned an initial noncompensable rating through July 14, 2016, and thereafter assigned a 20 percent rating. See June 2021 Rating Decision. The period on appeal is from November 20, 2009, the effective date of service connection. Hearing loss is evaluated under the criteria set forth in the VA Schedule for Rating Disabilities. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85, Table VI, Table VII. Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000-hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). Level I represents essentially normal acuity, and level XI represents profound deafness. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. In cases involving exceptional patterns of hearing impairment, defined as where the pure tone sensitivity threshold is equal to or greater than 55 decibels at each of 1000, 2000, 3000, and 4000-hertz or pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, then the veteran's hearing threshold is also applied to Table VIA, which provides a numeric designation of hearing impairment based solely upon pure tone threshold average. For each ear with an exceptional pattern of hearing impairment, the more favorable (i.e., greater) numeric designator from either Table VI or Table VIA is then applied to Table VII. See 38 C.F.R. § 4.86. During the period on appeal, controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing results from audiology examinations were conducted in February 2010, March 2011, and July 2016. At the February 2010 examination, the Veteran had an average sensitivity threshold of 74 decibels for the left ear and 76 decibels for the right ear, with 84 percent speech discrimination for the left ear and 82 percent speech discrimination for the right ear. Application of these results to Table VI shows level III hearing acuity in the left ear and level V hearing acuity in the right ear. The Veteran had an exceptional pattern of hearing impairment in his right ear, as his hearing threshold at 1000 hertz was 25 decibels and his hearing threshold at 2000 hertz was 85 decibels. Table VIA shows that 76 decibels of average impairment is consistent with level VI hearing acuity. He did not have an exceptional pattern of hearing impairment in his left ear, as his hearing threshold at 1000 hertz was 35 decibels. Application of level III acuity for the left ear and level VI acuity for the right ear to Table VII shows that a 10 percent rating is warranted. At the March 2011 examination, the Veteran had an average sensitivity threshold of 84 decibels for the left ear and 81 decibels for the right ear, with 80 percent speech discrimination for the left ear and 80 percent speech discrimination for the right ear. Application of these results to Table VI shows level V hearing acuity in the left ear and level V hearing acuity in the right ear. The March 2011 examination report shows that the Veteran had worse hearing thresholds at every level and a lower speech discrimination score. However, his right ear hearing threshold at the March 2011 examination was 35 decibels, and thus he no longer qualified for an exceptional pattern of hearing impairment. As Table VIA assigned a "VI" hearing acuity in February 2010 and Table VI assigned a "V" hearing acuity in March 2011, this would result in the absurd situation where the Veteran's right ear hearing thresholds and speech discrimination worsened without exception, yet VA treated his hearing loss as having improved. The Board resolves any reasonable doubt in favor of the Veteran as to whether the fluctuation in recorded hearing levels represents a genuine change in hearing and will apply the February 2010 right ear Table VIA result and March 2011 left ear Table VI result to Table VII. Application of level V acuity for the left ear and level VI acuity for the right ear to Table VII shows that a 20 percent rating is warranted. At the July 2016 examination, the Veteran had an average sensitivity threshold of 89 decibels for the left ear and 81 decibels for the right ear, with 62 percent speech discrimination for the left ear and 84 percent speech discrimination for the right ear. Application of these results to Table VI shows level VIII hearing acuity in the left ear and level III hearing acuity in the right ear. The July 2016 left ear results show an exceptional pattern of hearing impairment, as the Veteran had hearing thresholds of at least 55 decibels at each of the frequencies of 1000 hertz, 2000 hertz, 3000 hertz, and 4000 hertz. Application of 89 decibels to Table VIA yields level VIII hearing acuity, the same as Table VI. Again, the Veteran's right ear hearing thresholds deteriorated at every level, and the Board resolves any reasonable doubt as to the level of right ear hearing acuity and will apply level VI acuity. Application of level VII hearing acuity for the left ear and level VI hearing acuity for the right ear to Table VIII shows that a 40 percent rating is warranted. Accordingly, an initial rating of at least 10 percent is warranted from November 20, 2009 to March 1, 2011. Thereafter, an initial rating of at least 20 percent is warranted prior to July 14, 2016. Thereafter, an initial rating of at least 40 percent is warranted. The issue of entitlement to even higher ratings is addressed below in the remand section. REASONS FOR REMAND 3. Prior to the Veteran's death, entitlement to an initial rating in excess of 10 percent for hearing loss prior to March 1, 2011, and thereafter in excess of 20 percent prior to July 14, 2016, and thereafter in excess of 40 percent, is remanded. 4. Prior to the Veteran's death, entitlement to a TDIU is remanded. The Veteran was in receipt of a combined disability evaluation of less than 100 percent from 2009 through July 2016. However, if the evidence shows that he was unable to secure and maintain a substantially gainful occupation due to his service-connected disabilities, the Board can assign a total rating due to unemployability, or "TDIU." It is essential that the Board have information about the Veteran's work experience, education, and income so that it can determine whether this higher rating is warranted. Thus, additional development is necessary. If the appellant wishes to pursue a "TDIU," which could result in the payment of back benefits, she should complete the forms that she will be sent to the best of her ability. The Veteran was sent these forms in 2015, prior to his death. The record does not show that they were returned. The appellant is advised that the duty to assist is not a one-way street, and if she does not cooperate in assisting the Board in developing the claim, it may be denied. See Wood v. Derwinski, 1 Vet. App. 190 (1991). On remand, the claim of entitlement to a TDIU should be developed. The Veteran's complete VA treatment records should be secured. Action on the issue of entitlement to an increased initial rating for bilateral hearing loss is deferred pending this development. See Brambley v. Principi, 17 Vet. App. 20 (2003). The matters are REMANDED for the following action: 1. Provide the appellant with a copy of VA Form 21-8940 along with instructions for completing the form. 2. Secure the Veteran's complete VA treatment records. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.