Citation Nr: 21077121 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-23 937 DATE: December 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is related to his active duty service. 2. The Veteran's tinnitus began during active service with continuity to the present. CONCLUSIONS OF LAW 1. 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, 3.303, 3.385. 2. The criteria to establish service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1967 through April 1969. The appeal comes to the Board of Veterans' Appeals (Board) from a June 2015 rating decision; the other issues appealed from that decision were mooted by subsequent grants. 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran seeks service connection for bilateral hearing loss. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 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. Service connection for impaired hearing is only established when audiometric testing meets the specified pure tone and speech recognition criteria. Notably, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. In this case, the February 2018 VA examination documented a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. The Veteran reported having performed cargo loading and perimeter guarding during his active service and having used M79 and M60s without the use of hearing protection. He reported being near bombs, jets, helicopters during active service. The examiner opined against the claim, indicating there was not a positive threshold shift greater than normal measurement variability, and noted the Veteran's hearing was normal at separation. However, the Board's review shows that there was a threshold shift and abnormal hearing at separation, such that the Veteran's left ear is considered to have had a disability at separation, and the right ear showed readings at a near disability level. Prior to November 1967, service departments consistently used ASA units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. To convert, 15 dB is added at 500 Hz, 10 dB at 1000, 2000, and 3000 Hz, and 5 dB at 4000 Hz. Further, VA will consider audiometric data dated between January 1, 1967 and December 31, 1970 using either ISO-ANSI or ASA units, whichever is more favorable to the claimant, unless the audiogram clearly indicates which standard was used. On induction, in the September 1967 audiological evaluation, the utilized standard was not noted. Applying the more favorable standard, the pure tone thresholds are considered to have been recorded in ISO/ANSI, in dB, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 - -5 LEFT 15 10 15 - 25 On the April 1969 audiological evaluation, the utilized standard was also not noted, and the favorable interpretation to the Veteran is to read these as ASA measurements. Converting the readings to ISO/ANSI, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 25 20 10 LEFT 40 35 25 35 20 Comparison of these readings show the Veteran had a left ear hearing loss disability at separation as defined by 38 C.F.R. § 3.385 (but did not at induction), with 20, 15, 20, and 15 decibel shifts at the measured frequencies in the right ear between induction and separation. Remand for these findings to be reinterpreted by an examiner is not necessary. Given the threshold shifts shown for the right ear and the manifestation of a left ear disability during service, a VA examiner could not rationally opine against the claim. Service connection for bilateral hearing loss is accordingly granted. 2. Entitlement to service connection for bilateral tinnitus is granted. The Veteran has reported that his tinnitus began in service. See December 2014 VA 21-526. Because tinnitus is a condition capable of lay observation, and because the Veteran's reports are credible, service connection for tinnitus is warranted. See Charles v. Principi, 16 Vet. App. 370 (2002). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran asserts that service connection for hypertension is warranted as that disability was incurred secondary to the service connected type II diabetes mellitus. Service connection may be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In a June 2015 VA examination and opinion, the clinician opined that the Veteran's hypertension was less likely than not due to diabetes, as hypertension and diabetes were diagnosed at the same time and there was no diabetic renal disease to cause or aggravate hypertension. On review, the Board does not find that there was an adequate rationale or discussion as to the conclusions stated in this opinion to permit an informed decision. Specifically, the examiner did not explain the basis for concluding the Veteran had simultaneous onset and did not explain the significance of such. Moreover, the examiner did not note whether aggravation of hypertension by diabetes is possible absent renal involvement. Accordingly, remand is required for a new medical opinion. The matter is REMANDED for the following action: Obtain an opinion from a medical doctor regarding whether the Veteran's hypertension is at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected diabetes mellitus type II. A complete rationale for any opinion expressed is requested. T.D. JONES Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. C. KING 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