Citation Nr: 21071171 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 19-32 433A DATE: November 30, 2021 ORDER Service connection for bilateral hearing loss is granted. REMANDED Service connection for congestive heart failure with implanted AICD (claimed as ischemic heart disease) as a result of exposure to herbicides, to include hypertension is remanded. Service connection for colon condition (also claimed as blood in stool) is remanded. Service connection for thyroid goiter status post thyroidectomy (claimed as thyroid removal due to polyps) is remanded. Service connection for tracheal lesion status post excision (claimed as polyps on larynx) is remanded. REFERRAL The Board finds referral to the RO for the issue of entitlement to service connection for tinnitus is warranted. A review of the record on appeal reveals that the Veteran has raised this issue at the November 2021 Board hearing. However, this issue has not been adjudicated by the RO and is therefore referred to the RO for such adjudication. FINDING OF FACT Bilateral hearing loss had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1968 to April 1970, including service in Republic of Vietnam from April 1969 to April 1970. Pursuant to the Court's decision in Clemons v. Shinseki, 23 Vet. 1 (2009) and the medical evidence of record, the Board has expanded the Veteran's compensation claim for congestive heart failure with implanted AICD (claimed as ischemic heart disease) to include a hypertension disability. Service Connection Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge if the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303(a). For certain disabilities, such as chronic diseases, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of a veteran's discharge from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 1. Service connection for hearing loss. The Veteran asserts that he has bilateral hearing loss caused by acoustic trauma suffered as an ammunition renovation specialist while on active duty. 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 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. Even though a disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The post-service record shows that the Veteran meets the current disability requirement for bilateral hearing loss, as a November 2016 VA examination shows bilateral hearing loss of sufficient severity to warrant finding a hearing loss disability under 38 C.F.R. § 3.385. See November 2016 VA examination. Further, the Board concedes that the Veteran had noise exposure in service. The remaining question is whether there is a nexus between the appellant's in-service noise exposure and his current bilateral hearing loss. The Veteran's August 1969 service treatment records documents complaint of hearing loss while on active duty, and diagnosis of tympanic membrane perforation, right thickened tympanic membrane, and otitis externa. An audiometric examination in November 1979 documented a 12-decibel shift in the left ear threshold at 4000 Hertz and a 15 decibel shift in the right ear threshold at 4000 Hertz, however, hearing loss for VA purposes was not shown. The VA examiner opined in November 2016 that the Veteran's bilateral hearing loss was less likely than not caused by an event in the military service. She rationalized that a prolonged delay in the onset of noise-induced hearing loss was unlikely, and that there was no significant shift in hearing level variability during military service. The examiner did not consider the Veteran's observations about the noticeable decline in his hearing during and since active-duty service but premised her negative nexus opinion on the absence of a significant threshold shift in the Veteran's hearing thresholds and the absence of hearing loss shown in service. Here, the Board again highlights that hearing loss need not be shown in service for service connection to be established if there is sufficient evidence that a current hearing disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Therefore, the Board finds the nexus opinion provided by the November 2016 VA examination is not probative and affords it no weight. The Veteran and his spouse testified at the November 2021 Board Hearing. The Veteran presented sworn testimony that he has noticed a decline in his hearing since active-duty service. Additionally, the Veteran's spouse explained that she has known the Veteran since high school, and that there was a noticeable shift in his hearing after he returned from Vietnam. See November 2021 Board Hearing Transcript. The Veteran also testified during the November 2021 Board hearing that he experienced hearing loss while on active duty. Id. The November 1979 VA examination also documents the Veteran's complaint of his inability to hear at times in his right ear. In sum, having fully considered the record, given the Veteran's current hearing loss disability, his in-service exposure to acoustic trauma, and the evidence of continued symptoms of hearing loss following his service, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current bilateral sensorineural hearing loss is related to his in-service acoustic trauma. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Service connection for congestive heart failure with implanted AICD (claimed as ischemic heart disease) as a result of exposure to herbicides, to include hypertension is remanded. As stated above, the Veteran's claim of entitlement to service connection for a heart condition has been expanded to include hypertension. The Court has held that a scope of a claim is not limited exclusively to what is listed on the claims application but must involve the evaluation of several factors including "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of this, the Board finds that the case should be remanded for a medical opinion regarding the relation of hypertension and exposure to agent orange. Specifically, in November 2018, The National Academies of Science, Engineering and Medicine released a study that relates hypertension to agent orange exposure. See The National Academies of Science, Engineering and Medicine; study titled: Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (November 2018). The Veteran served in Vietnam and was exposed to agent orange. Therefore, the Board finds that this issue must be remanded for a VA examination where the examiner takes into consideration this study and opines if the Veteran's hypertension is related to service or his exposure to agent orange. Additionally, the claim must be remanded to determine the etiology of the Veteran's congestive heart failure in relationship to his hypertension. 3. Service connection for colon condition (also claimed as blood in stool) is remanded. 4. Service connection for thyroid goiter status post thyroidectomy (claimed as thyroid removal due to polyps) is remanded. 5. Service connection for tracheal lesion status post excision (claimed as polyps on larynx) is remanded. The Veteran also seeks service connection for thyroid, colon, and tracheal conditions. The Board finds that additional development is necessary prior to adjudication. The Veteran and his spouse testified at the November 2021 Board Hearing. The Veteran is concerned that his thyroid goiter status post excision, tracheal, and colon condition are the result of exposure to herbicides. The Veteran's spouse also explained that she has known the Veteran since high school, and that there was a noticeable difference in his voice after he returned from Vietnam service, which she attributes to the condition causing polyps on his larynx. To date, the Veteran has not been afforded VA medical examinations with regard to the etiology of his thyroid goiter status post thyroidectomy disability, tracheal lesion status post excision disability and colon condition disabilities. VA is to afford a veteran an examination of a claimed condition when there is a current diagnosis or persistent symptoms thereof, an indication that in-service event or injury may be related to the current diagnosis or persistent symptoms thereof. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to each claimed disorder, there is indication of a current diagnosis documented in the Veteran's VA treatment records. Additionally, no examinations have been afforded regarding whether the Veteran's disorders are etiologically related to his exposure to chemicals in service. As such, the issues are remanded for the Veteran to be afforded a VA medical examination. 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) as to the onset and etiology of his hypertension condition. The examiner must review the lay and medical evidence, specifically the NAS study, and opine it is at least as likely as not that the Veteran's hypertension is related to Agent Orange exposure. In doing so, the examiner must acknowledge and discuss the recent NAS study that upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. The examiner must also opine as to whether the Veteran's heart condition is caused or aggravated by his hypertensive disorder. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) as to the onset and etiology of his colon, thyroid, tracheal, and heart conditions. The examiner should review all medical evidence associated with the claims file. In particular, the Board draws the examiner's attention to the fact that the Veteran is considered to have been exposed to herbicides, including Agent Orange while serving in Vietnam. The examiner must provide an opinion as to whether the Veteran's disorders are directly related to his exposure to herbicides, including Agent Orange, during his active-duty service The examiner must acknowledge and discuss the competent and credible evidence of having a hoarse and raspy voice since service. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.