Citation Nr: 21023262 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-36 056 DATE: April 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, is remanded. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a right ear hearing loss disability as defined by VA regulation. 2. The preponderance of the evidence is against finding that left ear hearing loss began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1965 until his honorable discharge in July 1967 and in the United States Marine Corps from July 1969 until his honorable discharge in December 1969. He had service in the Republic of Vietnam. The bilateral hearing loss and hypertension disabilities come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). The May 2013 decision reopened the hypertension claim and then denied service connection. The TDIU claim was first decided in and is on appeal from an October 2020 rating decision of the RO. In January 2019, the Board reopened the Veteran’s hypertension service connection claim and then remanded the bilateral hearing loss, hypertension, and TDIU claims to the RO for further development. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection may be granted 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(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service – the so-called “nexus” requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. For certain chronic diseases, including sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for bilateral hearing loss. The Veteran asserts that he has bilateral hearing loss due to noise exposure from his time in service. The Veteran has a current hearing disability in his left ear but not the right. On VA examinations conducted in April 2014 and March 2019, the Veteran’s right ear puretone thresholds in decibels and Maryland CNC score did not meet the hearing loss requirements in 38 C.F.R. § 3.385. On VA examination in April 2014, for the right ear, his Maryland CNC score was 96 percent and his puretone thresholds were as follows: 500 Hz 15 decibels, 1000 Hz 15 decibels, 2000 Hz 15 decibels, 3000 Hz 20 decibels, and 4000 Hz 25 decibels. On VA examination in March 2019 for the right ear, his Maryland CNC score was 100 percent and his puretone thresholds were as follows: 500 Hz 20 decibels, 1000 Hz 20 decibels, 2000 Hz 20 decibels, 3000 Hz 30 decibels, and 4000 Hz 35 decibels. The Board has considered the Veteran’s own assertions that he has right ear hearing loss due to service. While he is fully competent to report his symptoms, he does not have the medical expertise to diagnose a hearing loss disability for VA purposes. Rather, the Board is bound by the applicable law and regulations to mechanically compare the requirements of 38 C.F.R. § 3.385 to the numeric designations from audiometric test results in determining whether there exists hearing loss for VA purposes. In the absence of probative evidence of a current right ear hearing loss disability, the other elements and theories of service connection need not be addressed, and the claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The left ear, however, does meet the requirements of 38 C.F.R. § 3.385 as his puretone thresholds were: 500 Hz 15 decibels, 1000 Hz 20 decibels, 2000 Hz 30 decibels, 3000 Hz 45 decibels, and 4000 Hz 40 decibels on VA examination in March 2019. His Maryland CNC score was 96 percent. He has at least one category that is greater than 40 and so is hearing impaired for VA purposes. Further, as the RO conceded that he was exposed to acoustic trauma due to his work in a warehouse and exposure to artillery fire during training, the Veteran has met the first two elements of service connection for the left ear. However, there is no nexus between his left ear hearing loss and in-service acoustic trauma. The Veteran left the Army in July 1967 and the Marine Corps in December 1969. As it relates to VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. Because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. Considering the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data. The March 2019 examiner found that the Veteran’s Army enlistment examinations in July 1965 and July 1969 showed normal hearing. See March 2019 VA Examination. The June 1967 separation exam also showed normal hearing. See Service Treatment Records. Despite his exposure to acoustic trauma, the Veteran did not experience a change in his hearing during service. The March 2019 examiner stated, “The National Institute for Occupational Safety and Health (NIOSH) recommends that a significant threshold shift (OSHA calls this a Standard Threshold Shift) is defined as a 15 dB HL shift or more at any one frequency from 500 Hz to 4000 Hz. There is NO significant shift in thresholds in the left ear from 1965 to 1969.” The examiner also concluded that “the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure" and that “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” See March 2019 VA Examination. Furthermore, the Veteran’s prior VA examination for hearing loss in April 2014 showed no hearing loss for VA purposes in either ear. The probative evidence does not show that the Veteran’s left ear hearing loss is related to his active military service, including to his in-service noise exposure. The disability was also not found within one year of separation from service. There is no indication, other than the Veteran's report, of an association between his left ear hearing loss disability and service. He does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of his medically complex left ear sensorineural hearing loss. He also does not have hearing loss for VA purposes in his right ear. As a result, his bilateral hearing loss claim is denied. In reaching this decision, 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). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. The prior remand in January 2019 instructed the RO to obtain an opinion on “whether the Veteran’s diagnosed hypertension at least as likely as not onset within a year of his separation from service; is related to his service, to include his presumed exposure to herbicide in service; or was caused or aggravated by his service-connected diabetes mellitus.” The RO failed to do so, and the issue must be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension because there is insufficient medical evidence to decide the claim at this time. The Veteran had VA examinations for hypertension in March 2019, July 2019, July 2020, and October 2020. None of these opinions adequately address the issues on remand. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). There are three theories of service connection in this case: direct service connection, where a disability resulting from disease or injury was incurred in or aggravated by active service, see 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); secondary service connection, where a nonservice-connected disability is proximately due to or the result of a service-connected disability, see 38 C.F.R. § 3.310; and, chronic disability presumption, where certain disabilities manifest to a compensable degree within one year from separation from 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 – see 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In a direct service connection rationale, the examiner must address the etiology of the Veteran’s disability. The March 2019 VA examiner’s rationale for denying the hypertension claim on a direct service connection basis was as follows: “At this date, hypertension has not been determined to be a presumptive Agent Orange condition.” This is not an adequate direct service connection rationale as it only discusses presumptive disabilities and not causation. A secondary service connection rationale must address both causation and aggravation. The rationale for secondary service connection was stated as, “based upon review of available records and [examination], Hypertension predates the onset of DM type II.” The rationale regarding aggravation was as follows: “based upon review of available records and examination, the veteran's hypertension has remained on the same [treatment] since onset, review of available readings, Bp controlled and stable on medication not requiring more medication treatment in increased dose or other hypertensive medications.” This is not adequate and must address causation. Regarding the theory of a chronic disease, the examiner failed to address the Veteran’s claim that his hypertension began in the 1960s and the examiner stated the diagnosis was in 1999, which is incorrect. A rationale discussing chronic disease presumption should discuss whether the disability manifested within one year after service and whether the Veteran has had continuous symptoms of the disability starting in service through the present. This examination was inadequate. The examiner must also provide an opinion concerning service connection based on a review of the Veteran’s service medical records, lay statements, and prior VA examinations. Merely providing an opinion based on the fact that a claimed disease is not on VA’s list of recognized diseases associated with herbicide agent exposure will be deemed inadequate. The examiner must address the Veteran’s lay statements, such as his argument that his hypertension began in the 1960s. In July 2020, the RO attempted to obtain an adequate medical opinion. The RO brought the following to the examiner’s attention: “VA compensation and pension examination in April 1971, the Veteran's blood pressure was noted to be 140/100 and a diagnosis of vascular hypertension is noted.” The examiner provided the following rationale: “Based upon review of available information, the [Veteran’s] diagnosed hypertension in March 1971 is not within one year of military discharge Dec 10, 1969.” This statement is an inadequate rationale as it fails to address whether the Veteran could have had hypertension prior to the date of diagnosis. The RO again attempted to obtain an adequate examination in October 2020. The addendum opinion stated, Based upon review of the available records [regarding] hypertension. The evidence does not show an event, disease or injury in service. The service treatment records do not contain complaints, treatment, or diagnosis for this condition. The condition is not one of the chronic diseases that VA presumes is related to herbicide exposure. The evidence does not show that your disease developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection. The [Veteran’s] moderate vascular hypertension noted on dated VA exam March 31, 1971 (signed 4 26 1971) was years after discharge. See October 2020 VA Examination. The examiner is informed that to merely provide an opinion based on the fact that a claimed disease is not on VA’s list of recognized diseases associated with herbicide agent exposure will be deemed inadequate. At the time the Board remanded this issue for additional development, in January 2010, hypertension was not on the enumerated list of diseases that are presumptively associated with an exposure to Agent Orange. It still is not considered by VA to be a disability that is subject to a regulatory presumption of service connection. See full list at 38 C.F.R. § 3.309(e). The National Academies of Sciences, Engineering, and Medicine (NAS) published an updated study of Veterans and Agent Orange: Update 11 (2018) that found sufficient evidence of an association between hypertension and exposure to Agent Orange, as well as other herbicides that were used during the Vietnam War. Therefore, that organization has changed its internal classification of “limited or suggestive evidence”, to a classification of “sufficient evidence” of an association with Agent Orange. While an “association” does not equal “causation” because there is an indication of a relationship between hypertension and exposure to herbicide agents, it triggers VA’s duties to obtain a supplemental medical opinion. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). As a result, the claim must be remanded in order to obtain an adequate opinion on the following theories: presumptive service-connection based on exposure to herbicide agents; chronic disease service connection; secondary service connection due to diabetes mellitus, type II; and direct service-connection. 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). The Veteran submitted a vocational assessment by Dr. S.B. in April 2017. That report states that the Veteran received Social Security Administration (SSA) disability income, but SSA records have not been obtained by the RO. These records must be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records, especially any records from December 1969 to April 1971 if possible. 2. Next, obtain any relevant SSA records (i.e., records related to the Veteran’s service-connected disabilities, as well as hypertension). If such records are not available, that should be documented in the file. The Veteran and his representative are to be notified of any unsuccessful efforts to allow them the opportunity to obtain and submit those records for VA to review. 3. Thereafter, obtain an addendum opinion from a new examiner addressing the etiology of the Veteran's hypertension. The entire claims file, including this remand, must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The following inquiries must be addressed: (A.) Whether given the fact that the Veteran had blood pressure of 128/80 in service and 124/82 at separation, and given the fact that became paralyzed from the neck down for five and a half months during basic training and later injured his back with heavy lifting during service causing him to file a claim for service connection in January 1971, and given the fact that he was shown to have moderate hypertension at the time of his 1971 examination, is it at least as likely as not that the hypertension began during active service or is related to an in-service injury, event, or disease, including the Veteran’s exposure to herbicide agents in Vietnam? In doing so, the examiner must address the 2018 NAS update which upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association, to the category of "sufficient" evidence of an association. According to 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. Merely stating that hypertension is not on VA’s list of recognized diseases associated with herbicide agent exposure will not suffice. (B.) Whether it is as least as likely as not that hypertension has been (i) caused OR (ii) aggravated (increase in disability) by the service-connected diabetes mellitus. (Continued on the next page)   (C.) Whether the Veteran’s hypertension developed within one year after service (merely stating that the March 1971 VA examination that diagnosed the Veteran with hypertension was more than a year from service will be inadequate). 4. After, readjudicate the Veteran’s claims. If the claims remain denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.