Citation Nr: 21023615 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 07-03 619 DATE: April 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss, for accrued benefits purposes, is granted. Entitlement to service connection for hypertension, for accrued benefits purposes, is granted. REMANDED Entitlement to service connection for a back disability, for accrued benefits purposes, is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the appellant, for accrued benefits purposes, the Veteran’s bilateral hearing loss is etiologically related to his active duty service. 2. Resolving all reasonable doubt in favor of the appellant, for accrued benefits purposes, the Veteran’s hypertension is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss, for accrued benefits purposes, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for hypertension, for accrued benefits purposes, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1953 to March 1955; and passed away in December 2011. The appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2009, the Veteran and his spouse testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board notes that the VLJ who conducted this hearing is no longer employed at the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In a March 2018 letter, the Board notified the appellant that the VLJ was no longer employed by the Board, and informed her of the right to another hearing. Subsequently, the appellant responded in a March 2018 correspondence noting that she does not wish to appear at another Board Hearing, and for the case to be considered on the evidence of record. In November 2009, the Board issued a decision denying the Veteran’s service connection claims for hypertension and back disability; and remanded the claim for service connection for bilateral hearing loss. The Veteran appealed the Board’s denial decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in the July 2011 Memorandum Decision, which vacated the portion of the November 2009 decision as it pertained to the service connection claims for hypertension and back disability, and remanded for re-adjudication consistent with its decision. Subsequently, these matters have been back before the Board in December 2011, March 2012, April 2018, August 2019, and November 2020, where they were remanded for additional development. The Board notes that there was substantial compliance with its November 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). However, regrettably, the Board finds that another remand is necessary as it pertains to the claim for entitlement to service connection for a back disability, which will be discussed in the designated section below. Service Connection Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Certain “chronic diseases” may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303(b). Bilateral hearing loss and hypertension are considered to be a “chronic disease” under 38 C.F.R. § 3.309(a). 1. Entitlement to service connection for bilateral hearing loss, for accrued benefits purposes. The appellant contends that the Veteran’s bilateral hearing loss had its onset during active service, or was otherwise directly related to the acoustic trauma he experienced during active duty service. After review of the record, the Board finds that service connection for bilateral hearing loss is warranted based on continuity of symptomatology. As an initial matter, the Board notes that the Veteran’s service treatment records (STRs) are unavailable for review. See VA Memo, June 2006. Nevertheless, the Board is aware of the heightened duty to explain its findings and conclusions and to consider the benefit of the doubt rule. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The record includes findings the Veteran had a current bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. Hearing loss for VA purposes was demonstrated at the July 2006 and September 2010 VA examinations of record. Additionally, the Board notes that the Veteran has competently and credibly stated that he was exposed to acoustic trauma during active duty while serving as an active gunner trainee; with the Board previously conceding to acoustic trauma in its November 2009 decision. Therefore, the Board will resolve any doubt in favor of the appellant, and concur with the previous November 2009 decision, to find that in-service noise exposure (acoustic trauma) is conceded. In July 2006, the Veteran was afforded a VA audio examination, where the examiner diagnosed the Veteran with bilateral high frequency sensorineural hearing loss; however, noted that an opinion cannot be rendered, as the claims file does not contain the Veteran’s STRs, specifically that of audio evaluations at the time of entrance and discharge from service. See VA Examination, July 2006. In a September 2009 Board hearing, the Veteran testified to first noticing his hearing loss in the early part of 1954 while serving as an active gunner on a 90 millimeter gun in Germany, to which he received in-service treatment for in the infirmary and was informed he had little hearing loss. Additionally, the Veteran noted that he started to receive post-service medical treatment through his employer, beginning in 1960. See Hearing Testimony, September 2009. In submitted lay statements, the Veteran asserted that his hearing loss began when he injured his ear in-service, with the damage having continued since; and the appellant asserted that the Veteran informed her he lost his hearing in service, which she notes he could not hear well when they got married, with her always having to repeat herself. See Lay Statements, May 2010. In October 2010, the Veteran was afforded another VA audio examination, where the examiner confirmed the diagnosis of bilateral frequency sensorineural hearing loss; however, noted that he cannot determine the causation of the Veteran’s condition without resorting to mere speculation, partly due to the absence of documentation in the Veteran’s STRs. See VA Examination, October 2010. The Board finds the July 2006 and October 2010 VA medical opinions to be of no probative value, as each examiners failure to provide opinions beyond mere speculation regarding the etiology of the Veteran’s claimed condition provides neither positive nor negative support for service connection. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Additionally, the Board notes that the examiners rationales requiring proof to be needed in unavailable service records to support the Veteran’s claim is improper. See Savage v. Gober, 10 Vet. App. 488, 197 (1997) (noting that if service records have been lost through no fault of the veteran, it would be unfair to require that a writing be contained in a service record). Furthermore, during the pendency of this appeal, and throughout the claims file, the Veteran and/or the appellant have repeatedly asserted that the onset of the Veteran’s bilateral hearing loss was during his active service in Germany, to which the Veteran stated he was told he had hearing loss while in the infirmary for treatment, with symptoms of hearing loss continuously experienced since then until his death. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). Lay evidence presented by a Veteran and/or appellant concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). In this case, the Veteran and appellant are both competent and credible to report symptoms that they perceived through their own senses, and the fact that it has been continuous since active service, but these reports must be weighed against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). As mentioned above, the medical evidence of record is not reliable, as the examiners failed to provide an adequate etiology opinion, to include proper analysis or consideration of the competent lay evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, no adequate medical nexus opinion is of the record, but that is not fatal to the Veteran’s claim, as in the present circumstance lay evidence may serve as a basis to establish the service connection claim. See Savage. Thus, the Boards finds the Veteran and appellant’s lay reports of the Veteran’s continuous symptoms since service and his recollection of a diagnosis of hearing loss during service are competent, credible, and highly probative; and resolving reasonable doubt in favor of the appellant, the claim for service connection for bilateral hearing loss must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5207; 38 C.F.R. § 3.102, 3.303(b). 2. Entitlement to service connection for hypertension, for accrued benefits purposes. The appellant contends that the Veteran’s hypertension had its onset during active service, or otherwise directly related to his active duty service. After review of the record, the Board finds that service connection for hypertension is warranted based on continuity of symptomatology. As an initial matter, the Board notes that the Veteran’s service treatment records (STRs) are unavailable for review. See VA Memo, June 2006. Nevertheless, the Board is aware of the heightened duty to explain its findings and conclusions and to consider the benefit of the doubt rule. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Due to the lack of STRs for review, the October 1969 private treatment record is the first showing that the Veteran has been treated for or diagnosed with hypertension, which is more than a decade after his separation from service. A prior, November 1966 private treatment record notes his history of hypertension. Post-service VA and private treatment records reflect continuous complaints, treatment, diagnosis, and history of hypertension. In lay statements submitted the Veteran, he asserts that he had ongoing hypertension symptomatology since service. See VA 646, August 2009. In a September 2009 Board hearing, the Veteran testified to receiving a diagnosis of hypertension during active duty service in Germany, to which he immediately started receiving treatment after service. See Hearing Testimony, September 2009. In March 2015, the appellant was provided a VA medical opinion to assess the etiology of the Veteran’s claimed condition. Upon review, the examiner provided an unfavorable opinion as to the Veteran’s condition being etiologically related to his active duty service, noting that a positive opinion cannot be rendered beyond mere speculation due to the lack of STRs. See C&P Exam, March 2015. In September 2019, the appellant was provided another VA medical opinion reassessing the etiology of the Veteran’s claimed condition. Upon review, this examiner also provided an unfavorable opinion as to the Veteran’s condition being etiologically related to his active duty service or manifesting within a year of discharge from service, as there are no records to substantiate the Veteran’s claim in-service or thereafter until 1969. See C&P Exam, September 2019. The Board finds the March 2015 and September 2019 VA medical opinions to be of no probative value. The March 2015 examiner failed to consider the Veteran’s competent and credible statements regarding the nature, onset, and continuity of symptomatology; as well as, failed to provide an opinion beyond mere speculation regarding the etiology of the Veteran’s claimed condition, which the Board notes provides neither positive nor negative support for service connection. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Additionally, the September 2019 examiner improperly relied on the lack of corroboration of treatment or diagnosis in the Veteran’s STRs, and the lack of contemporaneous medical records post-service to support an overall negative conclusion. Furthermore, the Board notes that both examiners rationales requiring proof to be needed in unavailable service records to support the Veteran’s claim is improper. See Savage v. Gober, 10 Vet. App. 488, 197 (1997) (noting that if service records have been lost through no fault of the veteran, it would be unfair to require that a writing be contained in a service record). Nevertheless, during the pendency of this appeal, and throughout the claims file, the Veteran and/or the appellant have repeatedly asserted that the onset of the Veteran’s hypertension was during his service in Germany, to which the Veteran stated he passed out on a training expedite and was told he had high blood pressure in the infirmary, with symptoms of hypertension continuously experienced since then until his death. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). Lay evidence presented by a Veteran and/or appellant concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). In this case, the Veteran and appellant are both competent and credible to report symptoms that they perceived through their own senses, and the fact that it has been continuous since active service, but these reports must be weighed against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). As mentioned above, the medical evidence of record is not reliable, as the examiners failed to provide an adequate etiology opinion, to include proper analysis or consideration of the competent lay evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, no adequate medical nexus opinion is of the record, but that is not fatal to the Veteran’s claim, as in the present circumstance lay evidence may serve as a basis to establish the service connection claim. See Savage. Thus, the Boards finds the Veteran’s and appellant’s lay reports of the Veteran’s continuous symptoms since service and his recollection of a diagnosis of hypertension during service are competent, credible, and highly probative; and resolving reasonable doubt in favor of the appellant, the claim for service connection for hypertension must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5207; 38 C.F.R. § 3.102, 3.303(b). REASONS FOR REMAND 1. Entitlement to service connection for a back disability, for accrued benefits purposes, is remanded. The appellant contends that the Veteran’s back disability had its onset during active service, or otherwise directly related to his active duty service. In September 2019, the appellant was provided a VA medical opinion to assess the etiology of the Veteran’s claimed condition. Upon review, the examiner provided an unfavorable opinion as to the Veteran’s condition being etiologically related to his active duty service or manifesting within a year of discharge from service, as there is a lack of documentation of medical records within a year of discharge, or between the Veteran’s active service and the subsequent diagnosis of a lumbar strain in March 1970. See C&P Exam, September 2019. Nevertheless, the Board finds this opinion to be inadequate for adjudicative purposes, as the examiner improperly relied on the lack of contemporaneous medical evidence post-service to solely support his overall negative conclusion. Therefore, the Board finds that the appellant should be provided an addendum VA medical opinion that adequately addresses the etiology of the Veteran’s claimed condition, prior to re-adjudication of the claim. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom the Veteran had received treatment for his back disability and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, send the claims file back to the September 2019 VA examiner to provide the appellant with an addendum VA medical opinion to determine the nature and etiology of the Veteran’s back disability. If the September 2019 VA examiner is not available, obtain the necessary addendum opinions from another appropriate clinician. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. After complete review of the record, the examiner must address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) the Veteran’s back disability had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the contended in-service injury due to lifting out riggers to get gun ready for movement, and noted history of back injury in post-service treatment records. (b) Any opinion should include a detailed rationale. The examiner should consider the entire claims file and discuss the Veteran’s and appellant’s lay statements regarding the nature and onset of symptoms. The examiner is advised that the Veteran and appellant are competent to report symptoms, and that their reports must be considered in formulating the requested opinion. (c) If the examiner(s) is unable to offer the requested opinion(s), it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382. (2010). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.