Citation Nr: 21022697 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 11-03 249 DATE: April 19, 2021 REMANDED Entitlement to a rating in excess of 20 percent from March 5, 2012, for service-connected bilateral hearing loss, is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to May 1968. The Veteran testified before the undersigned Veterans Law Judge during a March 2012 hearing. A transcript of the hearing is associated with the Veteran’s claim file. The claim for service connection for hypertension was denied by April 2014 and July 2017 Board decisions. The Veteran appealed both decisions to the United States Court of Appeals for Veterans Claims (CAVC). In January 2015 and August 2018, Joint Motion for Remands (JMR) were issued returning the claim to the Board. The Board denied entitlement to an initial compensable rating prior to March 5, 2012 for bilateral hearing loss in a January 2017 decision. The Veteran did not appeal this decision. The January 2017 Board decision also remanded entitlement to a rating in excess of 20 percent from March 5, 2012, for service-connected bilateral hearing loss. This matter was most recently before the Board in September 2020 and has now returned to the Board for adjudication. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 1. Entitlement to a rating in excess of 20 percent from March 5, 2012, for service-connected bilateral hearing loss The Veteran asserts that he is entitled to a higher evaluation for his service-connected bilateral hearing loss. The September 2020 Board decision remanded the issue as it was determined that the previous audiological examinations were inadequate as they did not consider all the relevant evidence of record. Specifically, the previous examinations were inadequate as there was no consideration of the Veteran’s report of dizziness, a medical history of dizziness, an assessment of right ear benign paroxysmal vertigo, and that the Veteran isolated himself from certain social settings due to hearing loss. The Veteran had also reported frustration resulting from the Veteran having to frequently ask his wife to repeat things and ear pain from his hearing aids, but there was no opinion as to whether those conditions were related to or aggravated by the Veteran’s service-connected hearing loss. The matter was remanded to determine whether separate ratings for these conditions were warranted and to obtain an addendum opinion. The Veteran was afforded a VA examination for his hearing loss in December 2020. The VA examiner indicated that there are no other disabilities related to hearing reported. She stated that the Veteran denied dizziness/vertigo and social isolation was not reported. He did report pain from left hearing aid reported since he was fit with current his hearing aid approximately one year ago and frustration when communicating with wife. The examiner stated as rationale that based on speech recognition score being good, communication breakdown could still be possible which is a common characteristic of high-frequency sensorineural hearing loss. Pain with left ear hearing aid fit was based on subjective reporting with no irritation found during otoscopic examination. She also stated that it is less likely as not (a 50 percent or greater probability) that the disability is related to or aggravated by the Veteran’s service connected bilateral hearing loss disability as the it is less likely than not that decreased subjective effective communication and isolation is a medically ascertainable increase in disability. Here, the VA examiner was asked to identify any and all disabilities related to the service-connected hearing loss since March 5, 2012; however, the medical opinion appears to address only recent manifestations but not the extent of the disabilities from March 2012. For instance, the VA examiner opined that the Veteran denied dizziness and vertigo but did not indicate whether this was present since March 2012 and whether it is related to hearing loss. Likewise, the Veteran had also reported social isolation in the past, but the VA examiner only noted that the Veteran did not report social isolation. Additionally, she noted that the Veteran reported frustration with communicating with his wife and that communication breakdown could still be possible but did not address whether this caused an additional disability. The Veteran also reported ear pain, but the VA examiner stated that it was subjective and did not address whether it was related to his bilateral hearing loss. The VA examiner noted that there was no evidence of irritation on examination; however, the Veteran reported pain associated with his hearing aids. The Veteran is competent to report subjective symptoms of pain and on remand, the examiner should address the report of pain by the Veteran. Thus, the Board finds that the December 2020 VA examiner did not provide an adequate medical opinion addressing additional disabilities related to the Veteran’s hearing loss and a remand opinion is required given the deficiencies noted in the opinion. 2. Entitlement to service connection for hypertension The Veteran contends that his hypertension is related to his service, to include exposure to Agent Orange from his service in the Republic of Vietnam. The Veteran has confirmed service in the Republic of Vietnam. The September 2020 Board decision remanded the issue as it found that the January 2020 VA examination was inadequate. Specifically, the Board found that the examination did not consider and discuss the National Academy of Sciences (NAS) Agent Orange Update and how it related to the Veteran’s situations as requested from the previous March 2019 Board decision. Also, the January 2020 Board found that the examination was inadequate as the examination did not provide an opinion as to whether the Veteran’s obesity is/was an intermediate step between his service-connected disabilities and hypertension. The Board also found that the examination was inadequate because the examiner did not consider all the relevant evidence of record to include the NAS Agent Orange Update; that the Veteran had not smoked since 2000; the Veteran’s report that medical literature tended to link the development of hypertension with herbicide agent exposure through the same mechanism that diabetes was developed from herbicide agent exposure, and that diabetes was considered a presumptive disorder related to herbicide agent exposure; and the Veteran’s belief that any examination should have discussed insulin resistance and the development of hypertension. The matter was remanded by the September 2020 Board for a new VA examination. To this end, the Veteran was afforded a VA examination in November 2020. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided by the examiner was that hypertension is a common medical condition of unknown etiology. The pathophysiological mechanisms responsible for hypertension are complex and on a genetic basis. She stated that current medical literature supports the following environmental factors for the development of hypertension: high salt intake, poor sleep quality, sleep apnea, as well as intrinsic factors such as aging, infectious to rheumatological conditions. She concluded that a nexus cannot be established with herbicide exposure. However, she did not discuss how the environmental factors applied to the Veteran. Furthermore, she did not indicate which medical literature she used to support her general conclusion. Additionally, the VA examiner found that it is not at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is/was caused by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities). The VA examiner stated for rationale that there is not a known association between medications and the development of hypertension. There was no other explanation provided for her rationale. She also opined that the Veteran’s hypertension was not aggravated beyond its natural progression by any or all of the Veteran’s service-connected disabilities (including any medications take for the service-connected disabilities) because there is no pathophysiological causation that can be established. She did not provide additional explanation in her rationale. Regarding obesity, the VA examiner opined that it is not at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran’s obesity/being overweight including whether there was any incremental increase in disability or aggravation as a result of service. She provided the rationale that there is no pathophysiological causation that can be established. There was no other rationale provided. The VA examiner also found that the Veteran’s hypertension did not manifest to a compensable degree within one year following service as the Veteran reported the onset since 2005 but did not offer any other explanation. The VA examiner was asked to consider and discuss the NAS Agent Orange Update of 2010 and 2018 in relation to the Veteran’s situation and the relationship between the development of diabetes from herbicide agent exposure and insulin resistance and the development of hypertension from herbicide Agent Orange exposure and insulin resistance. The VA examiner stated that the article is based on anecdotal self-report from veterans, and there is no associated double-blind study or any statistically significant gathered data, thus it is not a valid scientific study that has the ability to provide a sound medical conclusion to support this assertion. Here, the VA examiner did not specifically address which of the NAS articles she was referring to when she stated that the article is not a valid scientific study that has the ability to provide a sound medical conclusion to support this assertion, nor did she address the relationship between the development of hypertension from Agent Orange exposure and insulin resistance. Regarding the 2018 NAS update, hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to herbicide agents, to the category of “sufficient” evidence of an association to herbicide agents. According to the NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. It appears that the examiner did not consider the upgraded classification of hypertension to “sufficient” evidence of an association to herbicide agents as indicated in the NAS 2018 update. The Board finds that the November 2020 VA medical opinion is inadequate as the VA examiner provided general statements without further explanation or citation and did not fully address the questions posed by the September 2020 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, remand is necessary to obtain an addendum medical opinion that addresses the deficiencies noted in the November 2020 medical opinion. The matters are REMANDED for the following action: 1. Obtain VA treatment records from December 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion from the VA provider who issued the December 2020 VA medical opinion for bilateral hearing loss (or if no longer available, an appropriate replacement). All necessary tests and studies should be conducted. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Identify and discuss all disabilities related to the service-connected bilateral hearing loss, currently present, or present at any point from March 2, 2012 (event if now asymptomatic or resolved) and clearly state whether the disability is a current or resolved diagnosis. b) The Veteran also reported that dizziness/vertigo, pain from his hearing aids, relationship frustration, and social isolation are related to his service-connected bilateral hearing loss disability. Identify any and all disabilities related to this report since March 5, 2012. c) For any diagnosed disability, is it a least as likely as not (a 50 percent or greater probability) that the disability is related to or aggravated by the Veteran’s service-connected bilateral hearing loss disability? Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. The examiner must consider the following evidence when addressing the above: 1) The Veteran’s report of ear pain. The Veteran’s hearing aids felt like a plug in the ear and bothered him. See June 2020 VA Examination and November 2019 VA Treatment Record. 2) The Veteran’s report that he must frequently ask his wife to repeat herself, which causes frustration. See December 2019 VA Examination and May 2015 VA examination. 3) Medical records showing the Veteran’s issues with dizziness/vertigo, including a diagnosis of dizziness, how long the dizziness had been a problem, that the Veteran reported positional dizziness and showed right posterior canal cupulolithiasis BPPV, that hearing loss was an associated manifestation, and an assessment of right ear benign paroxysmal vertigo. See October 2019 VA Treatment Record; June 2019 Medical Treatment Record; May 2019 VA Treatment Record; and April 2018 VA Treatment Record. 4) Medical records showing that the Veteran isolated himself from certain social situations due to hearing loss. See February 2016 VA Treatment Record. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's VA treatment records, post-service medical records, and assertions. In considering any lay statements of record, the examiners should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. After completion of the above, obtain an addendum opinion from the VA provider who issued the November 2020 VA medical opinion for hypertension (or if no longer available, an appropriate replacement). All necessary tests and studies should be conducted. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is related to service, including conceded herbicide exposure during service in Vietnam? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is/was caused by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? The Veteran is service connected for bilateral hearing loss and tinnitus. c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is/was aggravated beyond its natural progression by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. d) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran’s obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/way a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. e) If yes to the above in section (d), is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated the Veteran’s hypertension including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. f) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension manifested to a compensable degreed within one year following service? The examiner must consider and discuss: The National Academy of Sciences, Institute of Medicine, Veterans & Agent Orange: Updated 2010, 77 Fed. Reg. 47, 924, 47, 926 (Aug. 10, 2012), in relation to the Veteran’s situation; The National Academy of Sciences Institute of Medicine’s Veterans and Agent Orange: Update II (2018) in relation to the Veteran’s situation; and the relationship between the development of diabetes from herbicide agent exposure and insulin resistance, and the development of hypertension from herbicide agent exposure and insulin resistance. The VA examiner is reminded that the NAS update of 2018 upgraded the classification of hypertension to “sufficient” evidence of an association to herbicide agents. The examiner must consider the following evidence when addressing the above: 1) The Veteran’s report on why service connection should be granted for hypertension based on the National Academy of Sciences Institute of Medicine’s Veterans and Agent Orange: Updated II (2018) and other evidence. See August 2020 Appellate Brief. 2) Medical records showing that the Veteran had not smoked since 2000. See January 2020 Medical Treatment Record and July 2019 Medical Treatment Record. 3) Medical records showing that obesity was a significant risk factor for hypertension. See January 2020 VA examination. 4) Medical records showing an impression of pulmonary venous hypertension. See July 2019 Medical Treatment Record. 5) Medical records showing that the Veteran might have had dizziness/vertigo because of his service-connected bilateral hearing loss disability. See June 2019 Medical Treatment Record. 6) Medical records showing diagnoses of hypertension and obesity. See May 2019 VA Treatment Record. 7) Medical records showing possible improvement in blood pressure with minor weight loss. See April 2018 VA treatment record. 8) The Veteran’s possible report of continuity of symptomatology of hypertension since service. See August 2016 Appellate Brief. 9) The Veteran’s report of medical literature tended to link the development of hypertension with herbicide agent exposure through the same mechanism which resulted in diabetes. Herbicide agent exposure resulted in diabetes by inducing insulin resistance. Insulin resistance was also linked to the development of hypertension. Diabetes was considered a presumptive disorder related to herbicide agent exposure. The Veteran cited a medical study in support of his report. See September 2015 Appellate Brief. 10) The Veteran’s belief that any examination should discuss insulin resistance and the development of hypertension. See March 2015 Appellate Brief. 11) Medical records listing high blood pressures and the Veteran’s weight beginning in February 2000. See August Medical Treatment Record. 12) Medical records showing a diagnosis of essential hypertension. See August 2009 VA Examination. 13) Service records showing a blood pressure reading of 118/76 pre-induction and a blood pressure reading of 132/72 at separation. The Veteran served in Vietnam. See May 2009 STR. 14) The Veteran’s report that the hypertension disability began in 1968 and was due to herbicide agent exposure in Vietnam. See March 2009 Veterans Application for Compensation. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's VA treatment records, post-service medical records, and assertions. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. In considering any lay statements of record, the examiners should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.