Citation Nr: 21020899 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-15 675A DATE: April 8, 2021 ORDER Entitlement to an initial compensable rating for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for degenerative joint disease (DJD), right knee is remanded. Entitlement to service connection for left knee strain, status post-arthroscopic surgery, is remanded. Entitlement to service connection for hypertension (HTN) is remanded. Entitlement to service connection for type II diabetes mellitus (DM2), including as due to exposure to herbicide agents, is remanded. Entitlement to service connection for abdominal aortic aneurysm (AAA), including as due to HTN, is remanded. Entitlement to service connection for sleep apnea, including as due to service-connected disability, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record shows that the Veteran’s left ear hearing loss manifested at Level I. An exceptional pattern of hearing impairment has not been shown. 2. The preponderance of the evidence of record fails to show that the Veteran’s right ear hearing loss manifested at a disabling level as defined by VA regulations. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.31, 4.85, 4.56, Diagnostic Code (DC) 6100. 2. The criteria for service connection for entitlement to right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active Naval service from August 1970 to January 1997. He perfected an appeal from a September 2010 rating decision that granted service connection for left ear hearing loss and assigned an initial 0 percent (noncompensable rating) and denied several service-connection claims. See 09/16/2010 Rating Decision – Narrative; 11/16/2010 VA 21-4138; 04/05/2014 SOC; 05/29/2014 VA Form 9. The Veteran died while his appeal was pending, and the appellant has been duly substituted in his stead. See 08/09/2019 Appeal Notification Letter. In January 2021, the appellant testified at a Board hearing before the undersigned via a virtual hearing. See 01/11/2021 Hearing Testimony. Although the undersigned received testimony on the issue of service connection for allergic rhinitis, including as due to chronic sinusitis, that issue is not in fact before the Board, as the Veteran specifically noted on his Form 9 that he opted not to perfect that issue. See 38 C.F.R. § 19.22. Hence, it will not be addressed in this decision. 1. Entitlement to an initial compensable rating for left ear hearing loss is denied. The Veteran did not assert a specific basis to support a compensable rating for his left ear hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz (Hz)). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (db) or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 db or less at 1000 Hz, and 70 db or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service connected in only one ear, as was the case with the Veteran, the law allows for compensation for hearing loss as if both ears were service connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). A June 2010 VA examination report reveals that the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [June 2010] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 25 25 30 27.5 94% LEFT 30 30 35 55 37.5 94% Applying the results to Table VI, the findings yield a numeric designation of Level I in each ear. Entering the resulting bilateral numeric designation of Level I in each ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. No other evidence of record contains audiometric findings. Based on the evidence above, a compensable rating for the Veteran’s left ear hearing loss was not warranted. Further, as discussed later in this decision, since the right ear did not manifest at a disabling level, the provisions of 38 C.F.R. § 3.383(a)(3) are not for application. The Veteran was competent to report difficulty with his hearing but, as noted earlier, he did not report any specific basis to support a compensable rating. Further, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an initial compensable rating for left hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for right ear hearing loss is denied. The Veteran asserted that his right ear hearing loss is related to his loss of hearing acuity documented in his service treatment records (STRs). There is no dispute as to the Veteran’s noise exposure during his active service, as this has been conceded. The sole question for consideration is whether that in-service noise exposure caused residual disability. Applicable Legal Requirements Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). 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 Hz is 40 db or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. VA regulations do not preclude service connection for a hearing loss that first met VA’s definition of disability after service, provided the evidence of record shows the required nexus with active service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also 38 C.F.R. § 3.303(d). Discussion The results of the Veteran’s June 2010 hearing examination were set forth in the discussion of the evaluation of his left ear, and they are incorporated here by reference. They show that the Veteran’s right ear hearing loss did not rise to the level required to constitute a disability, as the thresholds were 26 db or higher at only two frequencies, 1000 Hz and 4000 Hz, whereas three or more is required. All thresholds were less than 40 db. Hence, the Board is constrained to find that the preponderance of the evidence is against a finding of right ear hearing loss disability. 38 C.F.R. §§ 3.303, 3.385. REASONS FOR REMAND Essentially, the Board finds that the June 2010 VA examination is inadequate for appellate review purposes, as there are a number of instances where the examiner’s notations are contrary to the entries in the Veteran’s STRs. 1. Entitlement to service connection for DJD, right knee is remanded. 2. Entitlement to service connection for Left knee strain, status post-arthroscopic surgery, is remanded. The Agency of Original Jurisdiction (AOJ) asked the examiner to opine whether it was at least as likely as not (at least a 50 percent probability) that the Veteran’s currently diagnosed right knee disorder is causally related to the instances of treatment documented in the STRs. The examiner noted that he could not provide the requested opinion without resorting to speculation. See 06/17/2010 VA Examination, P. 8-11, 11. The examiner did not explain whether the necessity for speculation was due to a lack of medical skill and knowledge in the medical community at large, or his personal lack of medical knowledge and experience. That deficiency alone rendered the examination inadequate. Further, the examiner noted that 1994 knee x-rays were negative, and that there was no further documentation on the knees between 1994 and 2008. The Board notes, however, that on the Veteran’s September 1996 Report of Medical History for his examination for retirement, the examiner noted that the left knee was stiff and occasionally locked, and the right knee occasionally gave out. See 03/09/2015 STR-MED, 5th Entry, P. 96. Hence, another medical review by a clinician is indicated. 3. Entitlement to service connection for HTN is remanded. The examiner noted STRs showing borderline HTN, that he was placed on a low sodium diet, and that there was no evidence that the Veteran was ever on medication for HTN during his active service. See 06/17/2010 VA Examination, P. 4-7. However, the Veteran’s examination report for his retirement notes that he was on medication for HTN for one year, approximately in 1977. See 03/09/2015 STR-MED, 5th Entry, P. 96. The actual entry in September 1977 notes that after a 3-day blood pressure check, the Veteran was diagnosed with labile high blood pressure. He was started on HCT in September 1977. See 03/09/2015 STR-MED, 2nd Entry, P. 58. In later years, the medication was ceased, and the Veteran controlled his blood pressure with diet and exercise. Further medical assessment is needed to determine if the Veteran’s post-service diagnosis of essential hypertension was causally connected to his in-service labile hypertension. 4. Entitlement to service connection for DM2, including as due to exposure to herbicide agents, is remanded. The Veteran asserted that he performed temporary duty at Da Nang Air Base, Republic of Viet Nam (RVN). A commissioned officer he served under submitted a statement to that effect. See 07/29/2011 BUDDY/LAY. If that was the case, the Veteran is presumed to have been exposed to herbicide agents while there, and his DM2 will be deemed as due to that exposure. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Although the AOJ conducted a DPRIS inquiry, there is no indication that the Veteran’s military personnel records (MPR) were requested. 5. Entitlement to service connection for abdominal aortic aneursym, including as due to HTN, is remanded. This issue is intertwined with the hypertension issue, and possibly the DM2 issue. 6. Entitlement to service connection for sleep apnea, including as due to service-connected disability, is remanded. This issue is intertwined with the hypertension issue, and possibly the DM2 issue. The matters are REMANDED for the following action: 1. The AOJ shall obtain the Veteran’s MPRs and add them to the claims file and review them for any indication that the Veteran was ever physically present in RVN. If they are not obtained, document all efforts expended to obtain them and enter a Formal Finding in the claims file. 2. Regardless of whether the MPRs are obtained, send the claims file to an appropriate physician other than the one who conducted the June 2010 examination, even if the claims file must be sent to a facility that is not co-located with the AOJ. Ask the physician to opine on the following: Is it at least as likely as not (at least a 50 percent probability) that the currently diagnosed right knee DJD, and/or the left knee strain, status post-arthroscopy, is causally related to the injuries and treatment documented in the STRs, including the notation on his 1996 physical examination for retirement? The physician must provide a full explanation for all opinions provided. If the physician notes that the requested opinion cannot be rendered without resort to speculation, it must be explained whether the necessity for speculation is due to a lack of medical skill and knowledge in the medical community at large, or his/her personal lack of medical knowledge and experience; or, inform the AOJ what additional information is needed to render the requested opinion. The physician is also asked to explain the nature of the labile hypertension with which the Veteran was diagnosed in 1977 while in active service. The physician is also asked to opine whether it is at least as likely as not that the Veteran’s eventual diagnosis of essential HTN at an uncertain date after his retirement from active service is causally connected to the labile hypertension documented in the STRs. A full explanation must be provided for any opinion provided. If the physician opines that it is at least as likely as not that the Veteran’s HTN was causally related to his active service, then is it at least as likely as not that the Veteran’s abdominal aortic aneursym was due to it? If the answer is no, then is it at least as likely as not that the Veteran’s HTN worsened the abdominal aortic aneursym? If so, please provide in terms of a percentage, a baseline for the worsening. The physician is also asked to review the Veteran’s STRs and opine whether it is at least as likely as not that the Veteran’s sleep apnea had onset in active service or is otherwise causally connected to his active service. Inform the physician that the Veteran’s lay statement that he snored during his service, and wife’s testimony to the effect that the Veteran snored throughout their marriage must be considered in arriving at an opinion. If the AOJ determines that the Veteran’s DM2 is causally related to his active service, then ask the physician to opine on whether it is at least as likely as not that the Veteran’s HTN, sleep apnea, or the abdominal aortic aneurysm was due to the DM2? If not, then is at least as likely as not that the DM2 worsened either the HTN, sleep apnea, or the AAA, or all? If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. A full explanation must be provided for any opinion rendered. Finally, inform the clinician that where an opinion is requested on the issue of aggravation, any worsening of a disorder by another need not be chronic or permanent. Any occupation impairment due to flare-ups in a disorder caused by a disorder determined to be service connected is sufficient for an aggravating nexus. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.