Citation Nr: 21071879 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-21 152 DATE: December 1, 2021 ORDER Service connection for a heart condition is granted. REMANDED Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, her heart disability is at least as likely as not related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a heart disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1983 to August 1989, November 2004 to October 2005, March 2006 to September 2006, October 2006 to December 2007, January 2014 to September 2014, and February 2015 to April 2016. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2013 and September 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In January 2020, the Board remanded these matters for additional development. Included in this remand, were the issues of service connection for hypertension, a skin condition, and an ear condition to include otitis externa and ear cellulitis. In August 2020, the RO granted service connection for hypertension, epidermal cyst, and status post otitis externa. As such, this represents a full grant of the benefits sought as to those issues and the issues are no longer in appellate status. A. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.159. In this case, any error in notice or assistance is harmless given the favorable determination. B. Service Connection The Veteran contends that she is entitled to service connection for a heart condition. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In some cases, when a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran was afforded a VA examination in April 2020 and the examiner diagnosed hypertensive heart disease; thus, there is a current disability. The examiner also noted a diagnosis of "irregular EKG" and indicated that there were no significant symptoms. The Board acknowledges that the same April 2020 examiner that provided the hypertensive heart disease diagnosis also stated in another report that the Veteran did not have a cardiac diagnosis. The Board affords the latter statement no weight of probative value because it is contradictory to the April 2020 VA examination in which hypertensive heart disease was diagnosed. Even if the Board were to afford the examiner's statement about a lack of a diagnosed heart condition probative weight, the result would be an equipoise of the evidence and the benefit of the doubt is resolved in the Veteran's favor. As such, the Board concludes that the Veteran has a current heart disability. The Veteran's service treatment records (STRs) document that the Veteran underwent an EKG in September 1984, which showed sinus arrhythmia and prominent L waves. Additionally, a January 2016 Naval Medical Center treatment record reflects that the Veteran's heart was monitored from December 18, 2015 to January 6, 2016. Results revealed normal sinus rhythm/sinus bradycardia and that the Veteran experienced three light-headed episodes correlated with normal sinus rhythm. Bradycardia was present for 41 percent of the readable data and tachycardia was present for 1 percent. Therefore, the second element of service connection is met. What remains to be established is whether there is a relationship between the Veteran's service and her disability. In April 2020, a VA examiner offered a positive nexus opinion. The examiner opined that it was at least as likely as not that the Veteran's claimed heart condition was incurred in or caused by the claimed in-service events, namely the abnormal EKG findings. The examiner noted that the EKG abnormalities were not noted on entrance, which reflects that the Veteran entered service without any abnormalities and that the EKG related abnormalities were diagnosed in service. The examiner further commented that the onset of the Veteran's condition was during service and that there was evidence of current, chronic, and continuous treatment and care. The Board concludes that the evidence is at least in equipoise as to whether the Veteran's heart disability is at least as likely as not related to an in-service injury, event, or disease. In reaching this conclusion, the Board assigns substantial weight of probative value to the April 2020 positive nexus opinion. The Board affords the April 2020 examiner's conclusion that it was at least likely than not that the Veteran's heart condition was caused by the Veteran's service significant weight of probative value because the examiner's opinion is based on a thorough review of the medical evidence, is well-reasoned, and supported by medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). For example, the examiner stated that the Veteran did not have a heart condition prior to service, and this is supported by the Veteran's enlistment examination which is normal for any heart conditions. As such, the Board finds that the evidence of record is at least in equipoise as to whether there is a nexus between the Veteran's current heart disability and military service. In such cases, all reasonable doubt is resolved in favor of the Veteran. Thus, service connection for a heart disability is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. September 2019 and August 2020 VA audiology notes reflect that audiometric testing was completed. The notes indicate that word recognition testing was done using the W-22-word list; therefore, the speech discrimination test results would be inadequate for rating purposes. 38 C.F.R. § 4.85. However, the puretone threshold results are not of record and the treatment notes indicate that they are available under the "Audiogram Display under Tools." As the puretone threshold results could reveal findings showing an exceptional pattern of hearing impairment that could be evaluated without use of word recognition scores, the Board concludes that remand is necessary to obtain these audiometry results. 38 C.F.R. § 4.86. Additionally, a November 2016 VA treatment record reflects that audiometric testing was completed with word recognition testing using the Maryland CNC word list. However, puretone threshold results are not in the VA treatment note, and are again indicated to be available under the "Audiogram Display under Tools." Further, a March 2012 VA treatment record reflects that audiometric testing was completed. This record does not contain the puretone threshold results and does not clearly indicate what type of word recognition testing was completed. Therefore, remand is needed to obtain these audiometry results as they could be pertinent to evaluating the Veteran's bilateral hearing loss during the period on appeal. The matters are REMANDED for the following actions: 1. Obtain the audiometric test results from the Veteran's VA audiology appointments in March 2012, November 2016, September 2019, and August 2020, which are indicated to be located in "Audiogram Display under Tools." If it is unclear from any audiometry results whether speech discrimination testing was done using the Maryland CNC word list, please seek clarification regarding what type of speech discrimination testing was used. 2. Obtain and associate with the claims file VA treatment records from October 2021 to the present, including any audiometric test results. If it is unclear from such results whether speech discrimination testing was done using the Maryland CNC word list, please seek clarification regarding what type of speech discrimination testing was used. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Patel, 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.