Citation Nr: A21020562 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 201125-120545 DATE: December 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for hypogonadism is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a current hearing loss disability for VA benefits purposes. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1964 to May 1968. The initial rating decision was issued in October 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In November 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the October 2019 rating decision. In February 2020, the agency of original jurisdiction (AOJ) issued the HLR decision, which considered the evidence of record at the time of the initial rating decision. In March 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of the February 2020 rating decision based on new and relevant evidence. In April 2020, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received, but adjudicated these issues on the merits and denied the claims, hence the Board now considers these issues on appeal for consideration on the merits. In the November 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal in April 2020. 38 C.F.R. § 20.301. 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the preponderance of the evidence is against the claim, the claim must be denied. Id. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered a "disability" when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. Hearing loss does not constitute a "disability" if it does not meet these threshold requirements. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). In October 2019, the Veteran underwent a VA hearing loss and tinnitus examination. Testing reflected pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Right 20 20 20 15 25 Left 30 25 20 20 15 Speech audiometry using the Maryland CNC word list revealed initial speech recognition ability of 100 percent in both ears. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and opined that the condition was at least likely as not related to service. There are no other audiological evaluations of record. After careful review, the Board finds that service connection for bilateral hearing loss cannot be granted, as the only audiological evaluation of record does not demonstrate that the Veteran has a current hearing loss disability for VA purposes. There is no evidence of record indicating that the thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz have ever been 40 decibels or greater, or that the thresholds for at least three of the frequencies have been 26 decibels or greater. See 38 C.F.R. § 3.385. Accordingly, as the record does not establish that the Veteran has a current bilateral hearing loss disability for VA purposes, service connection may not be granted. See Shedden, 381 F.3d at 1166-67. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for a low back disability is remanded. 3. Entitlement to service connection for hypogonadism is remanded. In October 2019, the Veteran underwent examinations for hypertension, back conditions, and hypogonadism. However, the claims file reflects that the examiner only completed a Disability Benefit Questionnaire (DBQ) for each disability and did not provide a medical opinion relating to the Veteran's claims for service connection. The examiner stated that the regional office (RO) requested a DBQ, but not a medical opinion. See Oct. 2019 C&P Examination, p. 52. The Board finds that the lack of medical opinion for all three issues renders the examinations inadequate for adjudication purposes. Accordingly, the claims must be remanded in order to obtain adequate opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board notes that these examinations were performed prior to the April 2020 rating decision on appeal, constituting pre-decisional error. Accordingly, remand is warranted. 4. Entitlement to service connection for diabetes mellitus is remanded. In October 2019, the Veteran also underwent a VA diabetes examination, however the examiner did not diagnose him with diabetes mellitus Type II. The examiner found that the Veteran appeared to meet the criteria for a diagnosis of diabetes mellitus based on a May 22, 2015 private treatment record. See Jun. 2019 Medical Treatment Record Non-Government Facility, p. 64. However, the examiner further noted that there were no medical records from the treating physician regarding a diabetic diagnosis. The examiner also stated that there was no evidence in the private treatment records except for a laboratory result. The VA examination report does not indicate that new laboratory testing was performed to determine whether the Veteran has a current diagnosis of diabetes mellitus. The Board finds the October 2019 VA diabetes examination to be inadequate for adjudication purposes, as the examiner did not perform laboratory testing to determine whether the Veteran has a current diagnosis of diabetes mellitus. The examiner noted that "current test results" were dated June 20, 2018. The Board notes that the June 2018 results are also part of private treatment records submitted by the Veteran. See Jun. 2019 Medical Treatment Records Non-Government Facility, p. 4. Accordingly, the claim must be remanded in order to obtain an adequate examination and opinion. See Barr, 21 Vet. App. at 312. The Board notes that this examination was performed prior to the April 2020 rating decision on appeal, constituting pre-decisional error. Accordingly, remand is warranted. The matters are REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the October 2019 VA examinations for hypertension, low back, and hypogonadism so supplemental opinions may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must address the following: (a.) Determine whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's hypertension is related to his active service. (b.) Determine whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's low back disability is related to his active service. (c.) Determine whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's hypogonadism is related to his active service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Schedule the Veteran for an additional examination with an appropriate clinician for his claim on appeal for diabetes mellitus, type II. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must address the following: (a.) Determine whether the Veteran has a current diabetes mellitus disability and perform any necessary testing, if indicated. (b.) If there is a current diabetes mellitus disability, determine whether it is at least likely as not (a 50 percent probability or greater) that the condition is related to the Veteran's active service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. Blake Carter Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.