Citation Nr: 21070952 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 18-55 155 DATE: November 27, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for a chronic sinus disorder is denied. Service connection for hypertension is denied. Service connection for bilateral otosclerosis is denied. FINDINGS OF FACT 1. The Veteran had active duty from October 1965 to October 1967, to include service in Vietnam. He is in receipt of a Combat Infantryman Badge. 2. Bilateral hearing loss has been continuous since service. 3. The Veteran had pneumonia in service; however, no sinus involvement was shown; a current chronic sinus disorder, diagnosed as pansinusitis and rhinitis, is not causally or etiologically related to service and has not been medically associated with a service connected disability. 4. The Veteran's blood pressure reading was 130/90 at enlistment; however, hypertension (claimed as hypertensive cardiovascular disease) was not diagnosed in service, was not continuous since service, was not shown to a compensable degree within one year of service, and is not casually or etiologically related to service, to include as a result of exposure to Agent Orange (AO). 5. The Veteran reported ear trouble in service; however, symptoms were not shown to be chronic; a current diagnosis of bilateral otosclerosis is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 2. A chronic sinus disorder was not incurred in service and is not secondary to a service connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2021). 3. Hypertension was not incurred in service and is not presumed to have been incurred in service, to include as a result of AO exposure. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 4. Bilateral otosclerosis was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In May 2021, the Board remanded the appeals. The case has now been returned to the Board for adjudication. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 U.S.C. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Hearing Loss Hearing loss is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. As to a current disorder, multiple clinical records and an August 2018 VA examination reflect hearing loss for VA purposes. Although the November 2020 and July 2021 examination were found to be invalid as they were inconsistent with conversational behavior prior to testing, the record reflects hearing loss for VA purposes. Thus, the first element of service connection a current diagnosis has been met. Next, the evidence supports a finding of in-service acoustic trauma. Specifically, the Veteran's military occupational specialty (MOS) was assistant gunner/mortarman and he has reported in-service noise exposure from firearms, explosions, bazookas, mortars, and M16s. Further, his statements are consistent with the nature of his service. As there is no evidence of record which tends to contradict his testimony, the second element of service connection has been met. As to continuity, the Veteran indicated that he has experienced hearing loss since separation from service. The Board notes that August 2018 and January 2021 VA examiners determined that hearing loss was not incurred in service; however, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic" diseases of hearing loss (38 C.F.R. § 3.309(a)) based on a finding of "continuous" symptoms of hearing loss since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of hearing loss since service; therefore, hearing loss is presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of hearing loss since service separation, all other service connection theories are rendered moot. Chronic Sinus Disorder The Veteran contends that a chronic sinus disorder was incurred in service and/or was caused or aggravated by service connected asthma/bronchitis. Therefore, both direct and secondary service connection will be addressed. Turning first to direct service connection, the Veteran has been diagnosed with pansinusitis and rhinitis. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, service treatment records (STRs) reflect that the Veteran was treated for pneumonia in service in 1966 that resolved; however, there were no complaints of, treatment for, or a diagnosis related to sinus problems. Further, he did not report having sinus issues at separation. Therefore, an in-service incurrence was not shown and the second the second element of service connection has not been met. To the extent that the Veteran claims a nexus between service and the current diagnoses, an August 2018 VA examiner opined that the medical history was not consistent with sinus disease but rather was consistent with rhinitis; however, no supporting rationale was provided and no connection to service was rendered. In a January 2021 VA examination, the Veteran reported symptoms of nasal congestion, watery eyes, and cough that began in 2001. Upon examination, the examiner opined that a sinus disorder was less likely than not incurred in service. The examiner reasoned that STRs were absent of complaints, diagnoses, or treatment for a sinus disorder. Moreover, by the Veteran's own account, his symptoms did not start until more than 30 years after discharge. This evidence weighs against the claim. In addition, in a July 2021 VA examination, the Veteran reported a history of nasal congestion, sneezing, runny nose, and clear discharge. Upon examination, the examiner opined that sinus disorder was less likely than not incurred in service. The examiner reasoned that clinical records were silent of continuity/chronicity of care for a chronic sinus disorder since separation from service. Further, the examiner noted that STRs were silent for complaints, diagnoses, or treatment for rhinitis and that the current diagnosis of rhinitis was not related to the chronic pneumonia incurred in service. This evidence weighs against the claim. Based on the above, the medical evidence does not support that a chronic sinus disorder was directly incurred in service. While the Veteran had pneumonia in service, it was noted to have resolved. Further, clinical records did not show continuity of care for a chronic sinus disorder since separation. Therefore, the medical evidence does not support the claim of secondary service connection. As to secondary service connection, the Veteran has been diagnosed with sinusitis and rhinitis and is service connected for asthma/bronchitis. Therefore, the first two elements of secondary service connection, a current disorder and a service connected disability, are met. As to nexus, the July 2021 VA examiner opined that a chronic sinus disorder was not caused or aggravated by service connected bronchitis. The examiner reasoned that rhinitis, asthma, and bronchitis were different disease entities with different pathophysiological processes unrelated to each other that could co-exist together. There is no contradictory opinion. Therefore, the medical evidence does not support the claim of secondary service connection. In sum, the medical evidence does not support that a chronic sinus disorder was incurred in service and/or was caused or aggravated by a service connected disability. Hypertension The Veteran contends that hypertension (claimed as hypertensive cardiovascular disease) was incurred as a result of AO exposure; however, as hypertension is not a disorder entitled to presumptive service connection under 38 C.F.R. § 3.309(e), it may not be presumed to have been incurred as a result of AO exposure. Nevertheless, as hypertension is a chronic disorder under § 3.309(a), both direct and presumptive service connection based on continuity/chronicity will be addressed. Turning first to direct service connection, hypertension was diagnosed in 1992, hypertensive heart disease was diagnosed in 2011, and grade 1 diastolic dysfunction was diagnosed in 2021. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, STRs reflect a blood pressure reading of 130/90 at the December 1964 pre-induction examination; however, the examiner did not mark that the Veteran had hypertension at enlistment. Therefore, he is presumed sound and an aggravation analysis is not needed. Further, the blood pressure at separation was 122/70. Therefore, hypertension was not show in service. To the extent that the Veteran claims a medical nexus between hypertension and service, at an August 2018 VA examination, the Veteran reported that hypertension began after service. Upon examination, the examiner opined that hypertension was less likely than not incurred in service. She reasoned that STRs were silent for treatment for hypertension and that the Veteran had contended that hypertension began after service. This evidence weighs against the claim. Further, in a January 2021 VA examination, the examiner opined that hypertension and hypertensive heart disease were less likely than not incurred in service, as these disorders were not shown in service and were not diagnosed until 20 years after service. The examiner also noted they reviewed a study mentioned by the Veteran in an April 2009 statement conducted by the National Health Institute, which showed "sufficient" evidence of association between hypertensive heart disease and exposure to herbicides. While the study is not of record, the examiner wrote that they reviewed the study and concluded that there was no medical link between hypertension, hypertensive heart disease, and exposure to herbicides. Further, "sufficient evidence of an association" does not rise to the standard of "at least as likely as not" that is needed for a claim of direct service connection. Therefore, as the examiner determined that hypertension and hypertensive heart disease were not incurred in service based on an absence of continuity of care. This evidence weighs against the claim. In addition, a July 2021 VA examiner opined that hypertension, hypertensive heart disease, and grade I diastolic dysfunction was less likely than not incurred in service. She reasoned that STRs were absent of continuity of care for hypertension, hypertensive heart disease, and grade I diastolic dysfunction and that clinical records were absent of continuity of care after service. Further, she opined that hypertensive heart disease was part and parcel of the claim for hypertension and not a separate disorder. This evidence weighs against the claim. Based on the above, the medical evidence does not support that hypertension, to include hypertensive heart disease, was directly incurred in service. While the Veteran had elevated blood pressure readings on two occasions in service, STRs did not reflect a diagnosis of hypertension and clinical are absent of continuity of care after separation. Therefore, the medical evidence does not support the claim of direct service connection. Turning to presumptive service connection, the medical evidence showed that the Veteran was discharged from service in 1967 but was not diagnosed with hypertension until 1992. As he was discharged in 1967 and symptoms of hypertension were not identified until 1992, 25 years later, the medical evidence does not support service connection on a chronic in service or continuity of symptomatology basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. Specifically, the Veteran separated from service in 1967 and was not diagnosed with hypertension until 1992. Therefore, this evidence does not support presumptive service connection on a "manifest within one-year from separation" basis, and the medical evidence does not support presumptive service connection is not supported by the medical evidence. Bilateral Otosclerosis As to a current disorder, in a March 2003 clinical record, the clinician stated that the Veteran had been a patient since 1981 and was diagnosed with right ear otosclerosis in 1983 and left ear otosclerosis in 1981. Therefore, the first element of service connection is met. As to an in-service incurrence, in a November 2019 VA examination, the examiner wrote that otosclerosis was a genetic condition that pre-existed service; however, as it was not noted on the Veteran's enlistment examination, he is presumed sound and an analysis as to whether otosclerosis was aggravated in service is not needed. Further, in a May 1967 STR, he reported having trouble hearing and had the left ear irrigated; however, he did not report having ear trouble at separation. Nevertheless, as he reported ear problems in service, the second element of service connection is met. As to nexus, an August 2018 VA examiner opined that bilateral otosclerosis was less likely than not incurred in service. He reasoned that otosclerosis was an inherited disease and was not caused by trouble hearing. This evidence weighs against the claim. Further, in a November 2019 VA examination, the examiner opined that bilateral otosclerosis was less likely than not incurred in service. The examiner reasoned that otosclerosis was a pre-existing genetic condition not caused by service. Further, the examiner stated that the medical evidence did not support that otosclerosis was aggravated in service. This evidence weighs against the claim. In addition, in a January 2021 VA examination, the examiner opined that bilateral otosclerosis was less likely than not incurred in service. She reasoned that otosclerosis was a genetic condition caused by overgrowth of bone in the ear and not an in-service event. Further, she explained that there was no evidence to support that otosclerosis pre-existed service, as the Veteran was first diagnosed with this disorder in 1981. This evidence weighs against the claim. Based on the above, the medical evidence does not support that bilateral otosclerosis was incurred in service. Specifically, the evidence showed that it was a genetic condition that began in 1981 and was not caused by an in-service event. Therefore, the medical evidence does not support the claim of service connection. As to all the appeals, the Board has considered the Veteran's lay statements that these disorders began in service and/or are related to a service connected disability. He is competent to report symptoms because this requires only personal knowledge, as it comes to him through his senses; however, he is not competent to offer an opinion as to the etiologies of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements. Therefore, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.