Citation Nr: 21066474 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 13-21 200 DATE: November 1, 2021 ORDER 1. Entitlement to service connection for bilateral hearing loss disability is denied. 2. Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that Veteran has a bilateral hearing loss disability for VA purposes. 2. After affording the Veteran the benefit of the doubt, hypertension had its onset within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. 2. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from July 2006 to October 2006 and on active duty from August 2008 to September 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2010 (hypertension) and August 2010 (bilateral hearing loss) rating decisions by a Department of Veterans Affairs Regional Office (RO). In May 2018, the Board remanded the claims to the RO to request the Veteran identify any outstanding treatment records that would be relevant to his claims and to provide him with VA examinations for both disabilities. In a January 2020 supplemental statement of the case, the RO explained that it was unable to provide the Veteran with examinations because all attempts to contact the Veteran had been unsuccessful. The Board again remanded the claims in March 2020 finding that the RO had not fully complied with the May 2018 Board remand directives regarding the scheduling of the examinations. The record shows the Veteran underwent VA examinations to evaluate hearing loss and hypertension in June 2020. The RO issued an SSOC in June 2021, and the matters now return to the Board for appellate consideration. The Board is satisfied there was substantial compliance with the May 2018 and March 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, which is an organic disease of the nervous system, and hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Under VA regulations, hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. 1. Entitlement to service connection for bilateral hearing loss disability The Veteran contends he has hearing loss that is related to in-service noise exposure. The Veteran reported his hearing loss occurred gradually while he was in Iraq, and he stated he has difficulty with communication. He stated that during his tour of Iraq, he was subjected to countless explosions and constant firing of loud weapons and was located only a few hundred yards away from an airfield with jet engine noise 24 hours per day. He said he cannot hear his son speak even when he is sitting right next to him and cannot hear the phone ring unless the volume is turned up loudly. The Veteran also noted he wears hearing aids every day. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss disability. Specifically, the Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss disability that meets the regulatory requirements under 38 C.F.R. § 3.385. For example, on a VA audiological evaluation in June 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 20 LEFT 15 15 15 25 20 Speech audiometry revealed speech recognition ability of 94 percent in the bilateral ears. The June 2020 VA audiogram results show the Veteran did not have an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz at 40 decibels or greater, or a measurement of auditory thresholds for at least three of these frequencies that was 26 decibels or greater. Additionally, his speech recognition scores using the Maryland CNC Test are not less than 94 percent. Accordingly, this is evidence against the Veteran having a bilateral hearing loss disability for VA purposes. The Board recognizes that an April 2010 VA examiner conducted audiometry testing that showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 40 55 60 60 65 LEFT 60 60 65 65 65 Speech audiometry revealed speech recognition ability of 54 percent in the right ear and 62 percent in the left ear. The examiner diagnosed "sensorineural hearing loss in both ears with functional overlay." Despite these findings, the April 2010 VA examiner stated the audiogram results were not a valid representation of the Veteran's hearing loss, and further testing was required to obtain valid results. Further, the VA examiner noted the Veteran's hearing loss was less likely than not caused by service. Since the VA examiner determined that the testing was invalid and further testing was required to obtain valid results, the Board finds the April 2010 audiological testing to be invalid. The Veteran underwent additional audiometric testing in the form of optoacoustic nerve testing in July 2010 that showed results in the normal range in both ears. The audiologist documented that the Veteran did not demonstrate difficulty communicating with the front desk staff and demonstrated normal conversational skills with the audiologist during initial contact. This included responding immediately and demonstrating normal conversational volumes with and without visual cues and responding appropriately to all questions asked by the clinician. The audiologist noted that the Veteran's follow-up questions were appropriate to the conversational topic. The audiologist documented that Diagnostic Otoacoustic Emissions (OAE) testing revealed "emissions were obtained with normal limits in both ears." In response to "Impressions/Results," the audiologist wrote, "Diagnostic OAE findings are consistent with normal outer hair cell function of the inner ear, between 500 Hz and 8000 Hz, bilaterally. Behavioral observations and OAE test results are consistent with normal auditory threshold levels within this range." Based on the July 2010 optoacoustic nerve testing results, the April 2010 VA examiner changed her initial diagnosis of "sensorineural hearing loss in both ears with functional overlay" to normal hearing in both ears. However, the Board notes governing regulations do not provide for optoacoustic nerve testing as an alternate means for identifying hearing loss disability. Regardless, the July 2010 optoacoustic nerve testing results is evidence that tends to show that the Veteran does not have a bilateral hearing loss disability or supports the April 2010 examiner's conclusion that there is functional overlay in the Veteran's hearing loss. The Veteran underwent additional pure tone hearing testing during a July 2011 VA examination that showed the following results for air conduction testing: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 60 60 60 LEFT 60 60 60 60 60 Bone conduction hearing testing was also performed at that time, but the July 2011 VA physician stated the air conduction pure tone testing was better than the bone conduction testing to reflect the claimant's hearing loss. The VA physician noted the Veteran's response to the audiogram testing was "very reliable." Additionally, speech audiometry revealed speech recognition ability of 50 percent in the right ear and 50 percent in the left ear. Despite these test results, the July 2011 VA physician found the Veteran had normal hearing and noted the Veteran's reliability in the hearing testing was "very poor." The physician added that there was "a large functional component to his response in the audiogram." The physician pointed to the Veteran showing a normal speech reception threshold after he had spoken with the Veteran. Additionally, the VA examiner stated the Veteran had an intention to show a hearing loss. Since no explanation was offered for the VA physician's disparate conclusions based on the same audiometry, the Board also finds the July 2011 audiological testing to be invalid. Given the above, the only remaining audiological testing in the record is the audiological testing performed by the June 2020 VA examiner. The VA examiner determined the Veteran does not have bilateral hearing loss. The examiner pointed out that a review of the medical records showed no reported auditory dysfunction even though the Veteran reported exposure to combat noise when he was assigned to the infantry in the military. The examiner acknowledged the Veteran's military occupational specialty had a high probability of noise exposure but noted hearing protection was used. Additionally, the VA examiner identified how the Veteran's enlistment and separation exams showed normal hearing sensitivity while in the military, and the Veteran's current hearing was consistent with hearing thresholds found while in the military. Board directives from May 2018 and March 2020 asked the examiner to address the validity of the previous post-service audiometry findings of record. The Board notes that in addressing such audiometry findings, the June 2020 VA examiner referred to an April 2012 audiogram. However, given that there was no audiogram from 2012, it is clear that this was an inadvertent mistake, and the examiner intended to refer to the April 2010 audiogram. The June 2020 VA examiner noted the April 2010 audiogram showed positive Stenger findings, and likely functional hearing loss due to comparison of previous audiograms from while the Veteran was in service. The Board acknowledges that positive Stenger findings are consistent with malingering. The VA examiner also noted the hearing loss was found to not be consistent with a noise-induced hearing loss. However, the June 2020 VA examiner pointed out that the results of the April 2010 audiogram were marked as not valid. The examiner further noted the OAE testing from July 2010 showed that outer hair cell function is consistent with normal function of the inner ear. The June 2020 examiner stated that, as she did not perform the exams in 2010 and 2011, she could only speculate as to the reasons for differences in reliability. She stated if the Veteran had a functional overlay to his results, it would be because either he was intentionally waiting to respond until the sounds were significantly louder than threshold or he misunderstood the instructions as to what he was to do for the test. She noted the same could be said for speech testing, as the Veteran may have given intentional wrong responses, or he articulated the words incorrectly. The examiner explained that her review of the Veteran's records showed functional hearing loss had been suspected as in 2010, when the examiner recommended OAE testing to rule out the possibility of inaccurate results, as there is no response required from the claimant. She detailed this would be a more cost-effective test as opposed to an auditory brainstem response, which would record brain wave responses in response to tones. The Board finds that the June 2020 above-described answer complies with the May 2018 and March 2020 Board directives. The Board acknowledges the possible reasons that OAE testing may have been ordered for the Veteran as stated by the June 2020 VA examiner. However, the Board again notes governing regulations do not provide for optoacoustic nerve testing as an alternate means for identifying hearing loss disability. Therefore, as the June 2020 audiological testing is the only valid audiological testing in the record, it is given high probative weight. In evaluating hearing loss disability claims, the Board notes that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Indeed, the Veteran's June 2020 audiogram revealed a pure tone threshold, in decibels, of 25 at 3000 Hz in the left ear. This may be indicative that the Veteran has some degree of left ear hearing loss. However, 38 C.F.R. § 3.385 is clear in outlining the requirements of the degree of hearing loss required to be considered a disability for VA purposes. Again, these requirements are auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz at 40 decibels or greater, or a measurement of auditory thresholds for at least three of these frequencies that was 26 decibels or greater. Thus, while it may be true that the Veteran had some degree of hearing loss, the audiometry findings of record did not show a severity for which the Veteran is able to be found to have a bilateral hearing loss disability under 38 C.F.R. § 3.385. The preponderance of the evidence is against a finding that the Veteran has a current bilateral hearing loss disability as defined by VA. The Board has considered the Veteran's use of hearing aids. March 2010 VA treatment records noted the Veteran was a marginal audiometric candidate and hearing aids were ordered. However, given the strict requirements to meet a bilateral hearing loss disability under 38 C.F.R. § 3.385, in this case, the Board finds that the specific audiological results shown in the June 2020 examination are more probative evidence as to whether the Veteran manifests a bilateral hearing loss disability for VA purposes than the Veteran's use of hearing aids. Service connection is predicated on the existence of a current disability for VA purposes. At present, there is no competent evidence of record that establishes the existence of bilateral hearing loss disability under the clear requirements of 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims has specifically upheld the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes. Laypersons are sometimes competent to provide opinions regarding etiology and diagnosis. In this case, the Board finds that the specific audiological results shown on examination are more probative evidence than the Veteran's own contentions as to whether the Veteran manifests a bilateral hearing loss disability for VA purposes. While the Veteran believes he has a current diagnosis of bilateral hearing loss disability, he is not competent to provide a diagnosis in this case, as VA regulation provides specific requirements for a finding of what constitutes a hearing loss disability for VA purposes. Consequently, the Board gives more probative weight to the specific audiological results. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131. Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Because the evidence shows that the Veteran does not have a bilateral hearing loss disability during the pendency of the appeal, the Board finds that service connection for a bilateral hearing loss disability is not warranted. 2. Entitlement to service connection for hypertension The Veteran contends hypertension began in service. The Board has carefully reviewed the evidence of record and finds that the evidence supports the grant of service connection for hypertension based on a finding that it was diagnosed with one year of service discharge and is presumed to be connected to service. The reasons follow. Under 38 C.F.R. § 3.309(a), the Veteran is required to have served for 90 days or more of active service. The Veteran served on active duty from August 2008 to September 2009, which is more than the 90 days required . Thus, the Board finds the Veteran meets the first requirement to qualify for presumptive service connection under 38 C.F.R. § 3.309(a). The Veteran has been diagnosed with hypertension, and thus there is evidence of a current disability. For example, in a March 2010 VA treatment record the Veteran was diagnosed with hypertension. Thus, the facts establish that the first element of a service-connection claim is met. As to presumptive service connection for a chronic disease, the Board finds that the Veteran's hypertension manifested within one year of separation from service in accordance with 38 C.F.R. §§ 3.307(a) and 3.309(a), which the Board will explain in more detail below. Under Note (1) to 38 C.F.R. § 4.104, DC 7101, hypertension means that the diastolic blood pressure is predominantly 90mm. or greater. In March 2010, which was within one year of the Veteran's September 2009 discharge from service, the Veteran was diagnosed with hypertension in a VA treatment record after recording a blood pressure reading of 140/98. He was prescribed Lisinopril for his high blood pressure. He continued to show elevated blood pressure of 146/91 and 146/93 in respective August and October 2010 VA treatment records. This diagnosis and these blood pressure readings show the Veteran had hypertension under DC 7101. Resolving reasonable doubt in the Veteran's favor, the Board finds that the current hypertension was "chronic" in service under the presumptive service connection provisions of 38 C.F.R. §§ 3.307(a), 3.309(b). Accordingly, the Board concludes the evidence reasonably shows that service connection for hypertension is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Separately, the Board notes that the Veteran's claim for service connection for hypertension had been denied based on a finding that it pre-existed the period of service from August 2008 to September 2009 and was not aggravated by service. However, in reviewing the evidence, the current Board did not find that pre-existence was shown at entrance into that period of active duty. Rather, a July 2008 record documents the Veteran reported having "high blood pressure" since age 15 or 16 and that he was not on any medication at that time and was able to control it through diet and exercise. Having elevated blood pressure readings is not the same as having hypertension. The Board does not find that the Veteran's July 2008 report of high blood pressure since 15 or 16 years old establishes that "hypertension" existed at that time. Hence, the Board concluded that the issue was whether hypertension had its onset in service or if it manifested within one year of service discharge. As service connection for hypertension was granted based on presumptive service connection, which is a full grant of benefits, the Board finds that addressing whether hypertension was caused or aggravated by the service-connected posttraumatic stress disorder with major depressive disorder is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Patton 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.