Citation Nr: 21025301 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 13-06 069 DATE: April 27, 2021 REMANDED 1. Entitlement to an initial compensable rating for the service-connected bilateral hearing loss from June 16, 2014 to June 16, 2019, and a rating in excess of 10 percent on June 17, 2019 and thereafter is remanded. 2. Entitlement to service connection for hypertension, as secondary to service-connected diabetes mellitus type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to June 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal of February 2011 and February 2012 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing. In March 2015, the Board remanded this appeal for additional development. In June 2020, VA notified the Veteran that the VLJ who conducted the September 2014 hearing had retired during the pendency of the appeal. The letter advised the Veteran to request a hearing within 30 days if he desired a new hearing. To date, no response has been received from the Veteran. As such, the Board will proceed to consider the appeal based on the evidence of record. 1. Entitlement to increased ratings for bilateral hearing loss In March 2015, the Board denied the claim for an initial compensable evaluation for bilateral hearing loss for the period prior to June 16, 2014. Consequently, that period is no longer on appeal. However, the Board noted that the June 2014 VA examination report was inadequate, and thus remanded the remaining period on appeal. Subsequent to the Board remand, the RO assigned a 10 percent rating effective June 17, 2019. As higher ratings remain available for the appeal period, the claims for an initial compensable rating from June 16, 2014 to June 16, 2019, and a rating in excess of 10 percent from June 17, 2019 remain on appeal. Unfortunately, the Board finds that the record is incomplete as to the Veteran’s bilateral hearing loss claim and thus, must remand this matter. The Board sincerely regrets the additional delay caused by the remand but finds it necessary to obtain pertinent records regarding the severity of the Veteran’s bilateral hearing loss. Significantly, a January 2019 VA audiology note indicates that the Veteran complained of decreased hearing. At that time, audiological testing showed mild-to-severe sensorineural hearing loss in the right ear and normal to moderately severe sensorineural hearing loss in the left ear. Maryland CNC word recognition scores were 92 percent in the right ear and 88 percent in the left ear. Likewise, the examiner noted a significant change from the last examination in 2015. A complete report of the January 2019 VA audiology examination, including the scanned audiogram, has not been associated with the claims file. As such, the Board cannot adjudicate the claim. Therefore, on remand, the RO should obtain the complete January 2019 audiological examination report and associate it with the claims file. 2. Entitlement to service connection for hypertension The Veteran was afforded a VA examination in August 2015 and an April 2016 medical opinion was obtained pursuant to the March 2015 Board decision. The examiner concluded that the Veteran’s hypertension did not have its clinical onset during his military service and was therefore, less likely than not proximately due to his herbicide exposure during his military career. Further, the examiner opined that the Veteran’s hypertension was less likely than not proximately due to his service-connected diabetes mellitus. The examiner provided that “secondary hypertension tends to appear suddenly and cause higher blood pressure than does primary hypertension.” In this regard, conditions such “kidney problems” can lead to secondary hypertension. The examiner also opined that the Veteran’s hypertension is less likely than not aggravated by his service-connected diabetes mellitus because both conditions were diagnosed concurrently. However, the examiner provided that diabetes and hypertension have “possible shared factor[s] in the etiology.” A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Given the above, the Board finds the April 2016 medical opinion insufficient. While the examiner provided a negative nexus opinion between the Veteran’s hypertension and in-service herbicide exposure, she did not provide a rationale to support the finding. The examiner also listed “kidney problems” as a condition that can lead to secondary hypertension. In this regard, the Board notes that a February 2017 VA Clinical Note indicates that the Veteran has “stable reduced kidney function.” As such, an opinion considering the Veteran’s kidney function in relation to a nexus between his hypertension and diabetes is necessary. For these reasons, remand is necessary. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file the outstanding January 2019 VA audiological examination, including the scanned audiogram. The Board notes that simply obtaining a January 2019 CAPRI record is not sufficient. All attempts to secure this evidence must be documented in the claims file by the RO. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his hypertension. The claims file, including a complete copy of this remand, must be made available for review. The examiner should answer the following question: a) Is it at least as likely as not (probability of 50 percent or more) that hypertension had its clinical onset in service or is otherwise attributable to the Veteran’s military service, to include as due to herbicide exposure? If the answer to (a) is in the negative, the examiner should answer the following question: b) Is it at least as likely as not that hypertension was caused or aggravated by the Veteran’s service-connected diabetes? The examiner should specifically acknowledge the February 2017 VA Clinical Note indicating the Veteran has reduced kidney function. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 3. Then, readjudicate the claims. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the appeal to the Board. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Bobb, 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.