Citation Nr: 21014702 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-53 508A DATE: March 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for a heart condition, to include as due to herbicide agent exposure is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had bilateral hearing loss for VA compensation purposes at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not 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 had active duty service from October 1971 to February 1974, and from February 1974 to October 1975. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in December 2019 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection 1. Entitlement to service connection for bilateral hearing loss Upon review of the evidence of record, the Board finds that the Veteran does not have a current diagnosis of bilateral hearing loss by VA standards and has not had the same at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). To meet VA's definition of hearing loss, or hearing loss sufficiently severe to constitute a disability, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz must be 40 decibels or greater, or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz must be 26 decibels or greater, or the speech recognition scores using the Maryland CNC Test must be less than 94 percent. 38 C.F.R. § 3.385. Per the Veteran’s September 2013 VA audiogram, puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 15 15 20 16.25 100 LEFT 15 20 15 20 17.5 100 Per the Veteran’s March 2020 VA audiogram, puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 20 20 20 20 96 LEFT 20 20 20 25 21.25 96 Thus, per the above listed audiograms, the Veteran has neither an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater, nor does he have auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater. While the Veteran is competent to report hearing difficulties, he is not competent to diagnose hearing loss, including by VA standards or otherwise. See December 2019 Board hearing testimony. Such a diagnosis requires specialized knowledge of audiograms and an ability to interpret all pertinent responses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As the evidence of record does not include a competent diagnosis of bilateral hearing loss, the criteria for entitlement to service connection are not met. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. § 1110. In this case, the competent evidence establishes that the Veteran does not have the disability for which service connection is sought, that is bilateral hearing loss consistent with 38 C.F.R. § 3.385, and thus, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the claim for service connection for bilateral hearing loss must be denied because the first essential criterion for the grant of service connection, competent evidence of the disability for which service connection is sought, is not met. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss; claim denied. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure is remanded. 2. Entitlement to service connection for a heart condition, to include as due to herbicide agent exposure is remanded. Upon remand, the Veteran was afforded a March 2020 VA medical examination assessing the nature and etiology of his claimed for conditions. Upon review, the Board finds that the VA examiner did not adhere to the Board’s remand directives in terms of addressing the Veteran’s claims on a direct theory of entitlement as due to conceded herbicide exposure during service. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Rather, in opining that the Veteran’s hypertension condition did not incur in service, the VA examiner only relied upon the fact that hypertension is not a presumptively connected condition. Id. Here, the Board reiterates that the Veteran is not precluded from establishing service connection for his claimed for hypertension condition as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, unfortunately, another remand is needed to obtain an addendum medical opinion that applies the correct standard. Additionally, as the Veteran’s left ventricular hypertrophy condition has been medically linked to his hypertension, the Board finds the claims to be inextricably intertwined and will defer deciding both until the additional development herein requested has been completed. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Obtain an addendum medical opinion for the Veteran’s claim for service connection for hypertension. Upon review of the record, to include this remand, the VA examiner is requested to opine as to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension condition incurred in service, or is otherwise directly related to an in-service injury, disease or event, to include conceded exposure to herbicides during service? K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.