Citation Nr: 21009446 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-00 617 DATE: February 22, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for hypertension to include as due to service-connected disabilities is denied. FINDINGS OF FACT 1. A hearing loss disability was not shown in service or to a compensable degree within one year of the Veteran’s discharge from service, and the most probative evidence indicates the Veteran’s current hearing loss disability is not related to his military service. 2. The most probative evidence is against a finding that Veteran’s hypertension had its onset during active duty service or is related to such service; that hypertension manifested within one year of the Veteran’s discharge from active duty service; or that the hypertension was caused or aggravated by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a Board video conference hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of this hearing is of record. The Veteran was informed in a May 2020 letter that the VLJ was no longer employed by the Board and was offered an opportunity to attend another hearing. The Veteran did not respond. This matter was last before the Board in October 2018, when it was remanded for further development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be established 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. 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 an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  Moreover, where a veteran served continuously for 90 days or more during active service, and hearing loss or hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for bilateral hearing loss For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a “disability” for the purposes of service connection. 38 C.F.R. § 3.385. “[I]mpaired 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. When audiometric test results do not meet the regulatory requirements for establishing a “disability” at the time of the Veteran’s separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran claims that his bilateral hearing loss is a result of his military service, to include his conceded exposure to acoustic trauma. The Board notes that the Veteran has a current bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385, as shown on the March 2009 VA examination. The question that remains is whether the Veteran’s bilateral hearing loss disability is related to service. Service treatment record show the Veteran had hearing within normal limits at the time of his induction examination in December 1965 and on separation examination in November 1967, with no auditory threshold greater than 15 decibels. The first indication that the Veteran met the criteria for bilateral hearing loss disability pursuant at 38 C.F.R. § 3.385 was in July 2006, during audiological testing conducted by a private examiner. Subsequently, a March 2009 VA examination confirmed that the Veteran meets the criteria for a hearing loss disability. In this case, a bilateral hearing loss disability was not shown in service, but the Veteran has testified continuous symptom of bilateral hearing loss beginning in service and continuing since. However, the subjective observation of decreased hearing acuity does not equate to actual hearing loss. Medical testing and expertise are needed to determine whether actual hearing loss exists. There is no indication that the Veteran has specialized training sufficient to diagnose hearing loss or determine its etiology. Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the presence of a hearing loss disability and the etiology of such is a matter not capable of lay observation and requires medical expertise to determine. Thus, while the Veteran may believe he suffered from a hearing loss disability during and since service, the Board finds the in-service and post-service audiograms to be more probative as to the actual presence of a hearing loss disability. As the Veteran was not shown to have a hearing loss disability manifested during service or following service until July 2006, competent evidence linking the current condition with service is required to establish service connection. On this question, the Board finds the most probative evidence is against the claim. In this regard, an October 2019 VA examiner opined that it is less likely than not that the Veteran’s bilateral hearing loss is due to his in-service noise exposure. The examiner noted that although the evidence confirms sensorineural hearing loss, it does not support a nexus of auditory damage on active duty to relate the current hearing loss to military noise. The examiner explained that the records indicate normal hearing at entrance and separation, with no significant permanent shift in hearing thresholds greater than normal measurement variability and no evidence of permanent auditory damage on activity duty. The examiner noted that although excessive noise exposure on active duty is conceded, auditory damage and hearing loss is not conceded from noise exposure alone. There must be a nexus of auditory damage on active duty to relate the current hearing loss to noise on active duty. The examiner noted that there is objective evidence against a nexus in this case, and objective evidence that the Veteran’s current or future hearing loss was not caused by or a result of the Veteran’s military service, including noise exposure. The VA examiner’s opinion, which is based on review of the claims file and contained adequate rationale is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board acknowledges that in October 2014, a private audiologist; R.C., stated that the Veteran’s hearing loss was at least as likely as not a result from noise exposure associated with his military service. Additionally, the audiologist noted the Veteran’s noise exposure in service and concluded that subsequent development in later years of hearing loss and tinnitus is consistent with research published in the last ten years. This opinion was conclusory in nature and did not address in-service audiometric testing results showing hearing within normal limits. Accordingly, as this opinion did not provide adequate rationale, it is afforded less probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). In sum, the preponderance of the probative evidence of record is against a finding that the Veteran’s bilateral hearing loss arose in service or for decades thereafter, or that it is otherwise related to service. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for hypertension to include as due to service-connected disabilities The Veteran contends that his hypertension is related to military service or is due to his service connected disabilities. Since he has been diagnosed during the appeal with hypertension, the first criterion for establishing service connection has been met and the question becomes whether this condition is related to service (on either a direct or presumptive basis) or to a service-connected disability. The preponderance of the evidence is against the claim for service connection for hypertension on a direct basis. Service treatment records reveals blood pressure readings in May 1965, December 1965 and November 1967 of 126/74, 148/80 and 126/72 respectively. In April 2014, the Veteran reported that he was diagnosed with high blood pressures in approximately 2006 and was prescribed medication. In October 2019, a VA examiner opined that it is less likely than not that the Veteran's hypertension is of service onset, manifested to a compensable degree within one year of service discharge or is otherwise the result of his military service. The examiner provided the rationale that an exhaustive review of the Veteran's recorded blood pressure readings does not show any evidence of elevation of blood pressure during or within one year of service. There are no medical records which support the etiology or treatment of the Veteran's hypertension prior to 2006, when the Veteran was started on medication for high blood pressure by his private physician. The Board finds this opinion, which stands uncontroverted in the record, to be of high probative value. See Nieves-Rodriguez, 22 Vet. App. at 302-04. In the absence of a probative opinion linking the Veteran’s hypertension to active duty service, service connection is not warranted on a direct basis. The preponderance of the evidence is also against the claim for service connection for hypertension on a presumptive basis in the absence of evidence that the Veteran was diagnosed with hypertension within one year of his discharge from active duty service in November 1967. With respect to secondary service connection, service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. 38 C.F.R. § 3.310. In a July 2014 VA examination, the examiner indicated that the Veteran’s hypertension was less likely than not proximately due to, the result of, or aggravated by his PTSD, tinnitus, erectile dysfunction or Parkinson’s disease. The examiner noted that there was no demonstrable evidence that the cited conditions cause, result in, or aggravate hypertension. In a subsequent July 2014 addendum, the examiner was asked to indicate whether the Veteran’s hypertension was at least as likely as not aggravated beyond its natural progression by his service-connected PTSD. In an August 2014 addendum opinion, the examiner indicated that the Veteran’s current hypertension condition is not mentioned as being caused or aggravated by his service-connected disabilities or the medications he takes for them; and as it pertains to medical knowledge of essential hypertension and a review of the Veteran’s records, his hypertension is less likely as not proximately due to or the result of, or aggravated by his service-connected disabilities. In October 2019, a VA examiner opined that the Veteran’s hypertension is less likely than not proximately due to or the result of Veteran’s service connected condition. The examiner provided the rationale that there is no record of evidence which supports the etiology of the Veteran's essential hypertension as caused by or due to the Veteran's service connected conditions to include tinnitus, PTSD, Parkinson’s disease conditions or symptoms or erectile dysfunction. The examiner noted that a review of the active medications used to treat those conditions was also evaluated and found no basis for an etiology of the Veteran's hypertension caused by or due to medication used to treat service connected conditions. The examiner further noted the Veteran’s hypertension has been stable and has not worsened. The examiner cited multiple blood pressure readings to support her conclusion. She explained that a comparison to an exhaustive review of the Veteran’s blood pressure reading from the time he was diagnosed in 2006 does not show any aggravation. The blood pressure record shows a stable range for moderately well controlled blood pressure with occasional elevated readings consistent with medical management of hypertension. The VA examiners’ opinions taken together, were rendered following review of the claims file and are afforded high probative value. See Nieves-Rodriguez, 22 Vet. App. at 302-04. The Board acknowledges that a June 2014 letter from the Veteran’s private physician opining that the current hypertension is more likely than not secondary to or being aggravated by the Veteran’s service connected PTSD. The examiner notes that she “feel this way as his blood pressure control became problematic after diagnosis of PTSD not before.” The purported rationale provided is conclusory in nature and does not explain the medical basis for such conclusion. Thus, the opinion is afforded less probative weight. While the Veteran believes that his hypertension is related to service or a service-connected disability , as a lay person, he has not shown that he has specialized training to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of hypertension are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of hypertension, to include the assertion that his hypertension has been aggravated by his service-connected disabilities, is not competent medical evidence. The Board finds the combined opinions of the VA examiners to be significantly more probative than the Veteran’s lay assertions. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim for service connection for hypertension, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, 274 F.3d 1at 1364; Gilbert, 1 Vet. App. at 55-56. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.