Citation Nr: 21007509 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-10 210 DATE: February 9, 2021 ORDER The application to reopen the previously denied claim of entitlement to service connection for hypertension (HTN), to include as secondary to service-connected diabetes mellitus (DM), is granted. The reopened claim of entitlement to service connection for HTN is granted. The application to reopen the previously denied claim of entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD), is granted. The claim of entitlement to service connection for bilateral hearing loss disability is denied. The claim of entitlement to service connection for tinnitus is denied. REMANDED The reopened claim of entitlement to service connection for OSA is remanded. FINDINGS OF FACT 1. In August 2008 and March 2010 rating decisions, the Agency of Original Jurisdiction (AOJ) denied service connection for HTN; the Veteran did not appeal the March 2010 denial and no relevant evidence was received within a year of the decision. Therefore, the March 2010 decision became final. 2. Evidence added to the record since the March 2010 rating decision includes VA examination reports in May 2018 and January 2020, as well as a January 2021 Appellate Brief with medical treatise evidence, relates to unestablished facts and raises a reasonable possibility of substantiating the claim for service connection for HTN. 3. The Veteran served in Vietnam during the Vietnam War era and exposure to herbicides is conceded. 4. After resolving reasonable doubt in the Veteran’s favor, HTN is related to service. 5. In a March 2010 rating decision, the AOJ denied service connection for OSA; the Veteran did not appeal the decision and no relevant evidence was received within a year of the decision. Therefore, the decision became final. 6. Evidence added to the record since the March 2010 rating decision, to include VA examination reports in May 2018 and January 2020, as well as a January 2021 Appellate Brief with medical treatise evidence, relates to unestablished facts and raises a reasonable possibility of substantiating the claim for service connection for OSA. 7. Bilateral hearing loss disability first manifested many years after the Veteran’s discharge from service, and the only medical opinion of record to address the etiology of bilateral hearing loss weighs against the claim. 8. Tinnitus was first manifested many years after the Veteran’s discharge from service, and the only medical opinion of record to address the etiology of the disorder weighs against the claim. CONCLUSIONS OF LAW 1. New and material evidence having been received, the criteria for reopening the claim of entitlement to service connection for HTN have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 2. The criteria for entitlement to service connection for HTN have been met. 38 U.S.C. §§ 501, 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 3. New and material evidence having been received, the criteria for reopening the claim of entitlement to service connection for OSA have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 4. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 5. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from April 1968 to November 1969, to include service in the Republic of Vietnam. His military occupational specialty was as a mechanic. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA). For the reasons noted above, the requests to reopen the claims of service connection for HTN and OSA have been granted. The reopened claim of entitlement to service connection for HTN is addressed below. The reopened claim of entitlement to service connection for OSA is addressed in the REMAND portion of this decision. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2019). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including HTN and sensorineural hearing loss, will be presumed if they manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2019). The applicability of the theory of continuity of symptomatology in service connection claims is limited to those disabilities explicitly recognized as “chronic diseases,” such as sensorineural hearing loss. 38 C.F.R. § 3.309(a) (2019); 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 resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to Service Connection for HTN. The Veteran is diagnosed with HTN. In December 2005, it was noted that he had been diagnosed with the disability 10-12 years earlier. The disorder continues to be reported as noted upon VA treatment records in 2020. Because he served in Vietnam during the Vietnam War era, see military personnel records, in-service herbicide agent exposure is presumed. See 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2019). While HTN is not recognized as a presumptive condition due to herbicide agent exposure, the National Academy of Sciences (NAS) has found in a recent study, released on November 15, 2018, that “[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides use during the Vietnam War found sufficient evidence of an association for hypertension.” NATIONAL ACADEMY OF SCIENCES, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018), available at: http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. There are VA examination opinions in 2018 and January 2020 which have addressed whether the Veteran’s HTN is associated with service-connected DM (granted as associated with his in-service herbicide exposure). It was opined on both reports that HTN was less likely than not associated with DM in that HTN was diagnosed prior to DM. In the 2020 report, it was further noted that DM did not directly induce HTN. These opinions did not discuss the study summarized above which is in support of the Veteran’s claim for HTN on a direct incurrence basis as associated with his conceded in-service herbicide exposure. The Board has weighed the probative evidence of record, to include the opinions as summarized above, the competent and credible statements of the Veteran, as well as the NAS study suggesting a positive association between Agent Orange exposure and HTN, and finds that the evidence is at least in relative equipoise as to the Veteran’s current HTN and the causal relation between the disability and the Veteran’s active service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). As such, service connection for HTN is warranted. Entitlement to Service Connection for Bilateral Hearing Loss Disability and Tinnitus. A review of the service treatment records (STRs) reflects that audiometric testing was conducted in February 1968 (pre-induction) and at time of service discharge in November 1969. In 1968, pure tone thresholds were recorded as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 0 0 0 0 0 Left 0 0 0 0 0 In 1969, pure tone thresholds were recorded as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 5 5 5 5 Left 10 10 15 20 20 A hearing loss was not noted at either time; nor was tinnitus reported during service. Post service records include VA audiology examination from August 2017. Pure tone thresholds were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 35 50 50 45 Left 20 45 50 60 65 Bilateral sensorineural hearing loss was diagnosed. The Veteran denied tinnitus. He was seen again in December 2017 ready to pursue amplification. Additional VA audiology examination in May 2018 corroborates that the Veteran has bilateral hearing loss disability. The audiologist noted that the only threshold shift was in the left ear at 4000 Hz (although hearing remained within normal limits). In statements of record by the Appellant’s representative, it was also contended that he now experienced tinnitus. The May 2018 VA examiner opined that the Veteran’s bilateral hearing loss disability and tinnitus were less likely than not related to active service. For rationale, she noted that in-service audiometric testing reflected hearing within normal limits. There was no continuity of hearing loss symptoms and current hearing loss could not be connected to a military event. As for tinnitus, she noted that this was not noted upon approximately 2017 and that the disability was less likely than not the result of in-service noise exposure. Analysis Bilateral Hearing Loss Disability The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 500, 1000, 2000, 3000, 4000 Hertz is 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 (2019). Regarding the first element of service connection, it is not in dispute that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385 as found upon VA examinations in 2017 and 2018. Regarding the second element of service connection, it may also be reasonably conceded that the Veteran had exposure to hazardous levels of noise in service. Consequently, what remains necessary to substantiate his claim of service connection for bilateral hearing loss is competent evidence that the disorder is related to his service/noise trauma therein. After consideration of the third element, the Board finds the claim must be denied because the preponderance of the evidence is against a finding that the Veteran has bilateral hearing loss disability that is related to his service. As noted above, his STRs are silent as to diagnoses or complaints of bilateral hearing loss, and it was not until over 40 years later that bilateral sensorineural hearing loss was reported. There is no clinical evidence of audiological treatment or care prior to 2017 VA examination. Moreover, the Veteran has not contended that he experienced diminished hearing since service. Consequently, service connection for hearing loss disability on the basis that it became manifest in service and has persisted since or on a presumptive basis as an organic disease of the nervous system under 38 U.S.C. § 1112 (2012) is not warranted. Service connection for bilateral hearing loss may still be established by competent evidence that these disorders, first documented years after service, are related to service. Whether current hearing loss disability may, in the absence of evidence of onset in service or of continuity of symptomatology since, be related to service/exposure to noise trauma therein is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the May 2018 VA opinion, the examiner indicated that the Veteran’s hearing loss disability was not related to his military service. She essentially noted that entrance and exit evaluations reveal thresholds within normal limits bilaterally with no significant evidence of a shift except at 4000 Hz in the left ear (which still remained within normal limits). She did not deny that the Veteran suffered from noise exposure, rather stating that the exposure did not result in hearing loss that meets criteria for a hearing loss disability. Although, the examiner reasoned that hearing loss was not shown in service, and such is not fatal to the claim, the Board finds this reasoning adequate. Indeed, the Veteran did not report any hearing loss during service and denied such during the separation examination. Additionally, the VA examiner specifically found that the Veteran’s hearing loss was not of service origin. Further, the first noted treatment for hearing loss was in 2017 as shown in the VA examination report, over 40 years post-service. Moreover, the Veteran has not contended that he experienced diminished hearing in service and since. The Board finds the May 2018 VA examiner’s opinion highly probative to the issue of whether the Veteran’s hearing loss (and tinnitus) are related to service. The examiner possessed the necessary education, training, and expertise to provide the requested opinions. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Her opinions were based on a review of the claims file, and her review of the Veteran’s claims file consisted of STRs, post-service medical evidence, the Veteran’s contentions, and medical research. It is clear that the examiner took into consideration all relevant factors in giving her opinion. Collectively, the Board finds the preponderance of the evidence is against a finding that the current bilateral hearing loss disability was incurred during service, and is due to his military service, to include noise exposure from his military duties. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The record evidence does not indicate that the Veteran reported bilateral hearing loss within the one-year presumptive period after separation from service. Moreover, as noted, the record evidence does not indicate that the Veteran complained of or was treated for hearing loss in the over 40 years since separating from military service and his 2017 bilateral sensorineural hearing loss disability diagnosis. Although the Veteran believes that his current hearing loss disability is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Lay persons are competent to provide opinions on some medical issues, but the specific issue in this case, the etiology of bilateral hearing loss disability, falls outside the realm of common knowledge of a lay person. Accordingly, the Veteran’s opinion as to the etiology of his hearing loss disability is not competent medical evidence. In summary, bilateral hearing loss disability was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the current hearing loss is related to service. Accordingly, the appeal is denied. Tinnitus The STRs contain no findings attributed to tinnitus. Post service records are negative for report of the disability for many years, to include when examined by VA in 2017. Tinnitus was first mentioned as present upon VA examination in 2018, and as noted above, it was opined that the disorder was less likely than not the result of in-service noise exposure. The Veteran’s representative has argued upon appellate brief in 2021 that Veteran definitely experiences this disability. The representative has also argued that it should not be held against the Veteran that he waited to file for the disorder until many years after service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for tinnitus. While it is conceded that the Veteran had in-service noise exposure, the record shows that he had no complaints of or treatment for tinnitus prior to 2018, which is almost 50 years post discharge. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson and Shaw, supra. Moreover, the VA examiner’s 2018 opinion, which as explained above, has been found to be highly probative, reflects that that tinnitus was less likely than not related to service. See Grottveit, supra. In summary, tinnitus was not shown in service or for many years thereafter, and the most probative evidence is against a finding that current complaints of tinnitus are related to service. Accordingly, the appeal is denied. REASONS FOR REMAND Entitlement to Service Connection for OSA. There are various contentions of record regarding the issue of service connection for OSA. VA examiners have addressed the etiology of the disorder as to whether it was caused by or aggravated by PTSD. Now, however, it must be ascertained whether the condition may be as secondary to other disorders. It is noted that in the 2021 brief, the Veteran’s representative has raised additional contentions that must be addressed. Specifically, it is asserted that the Veteran’s OSA may be associated with his service-connected DM. To support this claim, the representative has referenced a medical article to support the claim that even mild OSA is associated with DM. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s OSA. The examiner must opine whether the Veteran’s OSA is at least as likely as not (1) proximately due to service-connected DM, or (2) aggravated beyond its natural progression by service-connected DM. When rendering the opinion, the examiner must consider the findings in the internet articles as provided by the Veteran’s representative in January 2021 – (https://www.vertwellhelath.com/ptsd-and-sleep-apena-5077697; https://www.sleepfoundation.org/sleep-apnea/ptsd-and-sleep-apnea; and file:///P:/Archive/New%202019/Templates%20and%20/References/OSA%20and%20DM-Meta-analysis-Diabetes-2019.pdf). Any opinion expressed should be accompanied by a complete rationale. (Continued on next page)   2. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.