Citation Nr: 21026333 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-42 637 DATE: April 30, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. FINDING OF FACT Bilateral hearing loss did not manifest in service, within the one-year presumptive period, or for years after service and is unrelated to the Veteran’s in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from March 1968 to October 1969. The appeal originates from a June 2014 decision of a Department of Veterans Affairs (VA) Regional Office. In his November 2015 VA Form 9, the Veteran requested a Board hearing. However, in February 2019, the Veteran withdrew his hearing request. See 38 C.F.R. § 20.704(e). In April 2020, the Board remanded the claims for further development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Based on the Veteran’s military occupation specialty (MOS) as a power plant operator/mechanic, and the Veteran’s lay statements, significant noise exposure during service is conceded. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is due to his active military service. There are specific requirements regarding what constitutes a hearing loss disability under VA law. Generally, the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or when speech recognition scores utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Thus, even if some degree of hearing loss is shown at various frequencies (i.e. a puretone threshold above 20 at any frequency between 500 Hz and 4000 Hz) such findings do not necessarily reflect a defect with regard to hearing. See McKinney v. McDonald, 28 Vet. App. 15, 29 (2016) (holding that hearing loss that does not meet the requirements of § 3.385 is not a "defect" because it is not considered a disability for VA purposes). Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Service treatment records (STRs) do not reflect a diagnosis, treatment, or complaints of a bilateral hearing loss disability. Specifically, the October 1969 separation report of medical examination reflects hearing within normal limits with no threshold shift from entry, irrespective of whether the testing was conducted under the ISO standard or the ANSI standard. Additionally, in his separation report of medical history, the Veteran denied hearing loss. Post-service, the June 2014 VA audiometric testing revealed the following pure tone thresholds in decibels: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 15 20 25 45 Left 65 30 10 35 35 His speech recognition scores were 100 percent for the right ear and 100 percent for the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The audiologist opined that the Veteran’s bilateral hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. As rationale, he reported that it is well known that prolonged exposure to high intensity levels like the military type can cause damage to auditory structures resulting in hearing loss. The Veteran was exposed to military noise as a combat engineer for 13 months in Vietnam. However, separation examination from 1969 indicates normal hearing even after being exposed to military noise. In a July 2014 statement, the Veteran reported that his hearing was damaged while he was a combat engineer around a lot of big equipment that made a lot of noise, including diesel generators, water hauler trucks, and other large transportation trucks. He reported that he built bridges and other major construction projects and the loud equipment was needed to complete the jobs. He reported that he was not given a separation examination. He explained that everyone just wanted the paperwork done, so no actual hearing test was given when he separated from the military. He reported that his hearing was damaged when he was in Vietnam. The February 2021 Disability Benefits Questionnaire (DBQ) audiometric testing revealed the following pure tone thresholds in decibels: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 10 20 45 60 Left 20 30 55 60 75 Speech recognition scores were 96 percent for the right ear and 82 percent for the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The Veteran’s MOS was a prime power production specialist with a high probability of hazardous noise exposure. He was exposed to military noise exposure to include motor noise, rockets, helicopters, and firearms. The audiologist noted that there has been no occupational and recreational noise exposure post-service. The audiologist opined that the Veteran’s hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. As rationale, she reported that STRs, on entrance and separation, are silent for hearing loss. The Veteran reported onset of hearing decrease as approximately 45 to 50 years post-separation. Although noise exposure is conceded and the relationship between noise, auditory damage, and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone. There is no evidence to support a nexus to relate current hearing loss to military noise and not another etiology. Therefore, it is less likely as not that the current hearing loss is related to military noise exposure. VA treatment records were reviewed in connection with the claim which were consistent with the audiology testing results and statements made during the examinations. Upon review of the evidence of record, service connection for bilateral hearing loss is not warranted. As an initial matter, the Veteran has a current bilateral hearing loss disability under 38 C.F.R. § 3.385, and that the Veteran has competently and credibly reported in-service noise exposure. Thus, the dispositive issue is whether there is a nexus between the two. The most probative evidence of record weighs against the claim and does not establish that there is a relationship between the Veteran’s current hearing loss and service, to include his in-service noise exposure. As noted, no bilateral hearing loss was shown in service nor was such competently and credibly indicated for many years thereafter. The evidence of record first documents hearing loss to an extent recognized as a disability by VA in 2014; well outside of the one-year presumptive period. Significantly, neither in the statements submitted in connection with the appeal nor during the VA examinations did the Veteran indicate that he had continuity of hearing loss symptomatology since service. While the Veteran sincerely believes that his hearing loss is due to service; he has not reported that he has had a hearing loss that has continued since service. Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable). Consequently, there is no medical or lay evidence that hearing loss had its onset during service, within the one-year presumptive period, or for many years thereafter, and 38 C.F.R. § 3.303(b) is not for application. In addition, the February 2021 VA audiologist explained the reasons for her conclusion based on an accurate characterization of the evidence of record as well as her specific knowledge on hearing loss. The opinion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The VA examiner based her conclusion on multiple factors and neither the examiner nor the Board’s conclusion of a lack of a relationship between hearing loss and in-service noise exposure is based solely on the normal hearing testing at separation. Cf. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). To the extent that the Veteran has opined that his hearing disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s testimony as to the etiology of his current hearing disability is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). This is because the Veteran does not have the requisite medical experience to provide a competent opinion as to causation when, as here, the Veteran’s hearing loss did not develop until many years following service discharge. The Board finds the specific, reasoned opinion of the VA medical professional in February 2021 to be of greater probative weight than the Veteran’s more general lay assertions. With respect to the Veteran’s assertion that he did not receive an audiogram at separation, it is notable that the audiometric findings at separation show a “0” puretone threshold, at every frequency. As such, it is certainly possible that no audiometric testing was conducted at separation, which is consistent with the Veteran’s assertions. Nonetheless, as noted above, in his self-reported separation report of medical history, the Veteran checked that he did not have hearing loss. In other words, even if the Veteran’s hearing was not examined at the time of discharge, the onset of hearing loss occurred much later and the Veteran does not dispute that finding. Thus, considering the June 2014 and February 2021 medical opinions, both of which were based on conceded in-service noise exposure, the preponderance of evidence is against a relationship between the Veteran’s hearing loss disability and in-service noise exposure. For the foregoing reasons, entitlement to service connection for bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure. The Veteran contends that his hypertension is due to his active military service. STRs reflect blood pressure readings that were within normal limits, and the Veteran did not report complaint of symptoms of hypertension. Post-service, in 2009, he was subsequently diagnosed with hypertension. The Veteran served in Vietnam and has been presumed exposed to herbicide agents, to include Agent Orange. Although hypertension is not on the presumptive list of disease associated with exposure to Agent Orange; a claimant is not precluded from establishing service connection on a direct basis. In other words, even if a disease is not on the list of diseases presumed service connected in veterans exposed to Agent Orange, the Veteran may nonetheless establish entitlement to service connection by showing his hypertension was actually caused by his Agent Orange exposure. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). Notably, in the November 2018 Veterans and Agent Orange: Update 11 (2018), publication from the National Academy of Sciences Institute of Medicine (NAS), the NAS upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. See Veterans and Agent Orange: Update 11 (2018). In a July 2014 statement, the Veteran reported that his hypertension originated while he was serving in Vietnam and the stress was constant and has stayed as he tried to adapt to the changing conditions and circumstances of coming back home from Vietnam. A July 2020 DBQ report confirms the diagnosis of hypertension by readings taken two or more times on at least three different days. The examiner found 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. As rationale, he reported that STRs do not show any diagnosis of hypertension while on active duty or within one year of separation. In April 2021 argument submitted by the Veteran’s representative, the representative asked that the claim be remanded to obtain a medical opinion to satisfy the VA’s duty to assist. See 38 U.S.C. § 5103A(d). The representative argued that the Veteran’s hypertension may be related to exposure to herbicide agents and the July 2020 medical opinion did not opine on this. The Board finds that the July 2020 VA medical opinion is inadequate. The July 2020 VA medical opinion failed to take into consideration the Veteran’s statements regarding his hypertension and failed to take into consideration that the Veteran has been presumed exposed to herbicide agents in Vietnam, in light of the 2018 NAS study update. An additional medical opinion by an appropriate physician is warranted to resolve this inadequacy. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Obtain a VA medical opinion as to the likely etiology of the Veteran’s hypertension. The entire claims file, and a copy of this remand, must be provided to and reviewed by the clinician. The clinician should provide an opinion as to: Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s hypertension had its onset in service, or was manifested to a compensable degree within the first post-service year; or, whether it is otherwise related to disease or injury in service, to include secondary to in-service herbicide exposure. The clinician must specifically address appropriate medical literature, to include, but not limited to, the 2018 findings from the latest November 2018 NAS study that upgraded hypertension to the “sufficient” category from “limited or suggestive,” with respect to evidence establishing a relationship between Agent Orange exposure and hypertension. Additionally, the fact that hypertension is not on the list of diseases presumed service connected in veterans exposed to Agent Orange should not be the sole basis for a negative opinion, as the Veteran may still establish service connection by direct causation. In providing the requested opinions, the examiner should specifically consider and discuss all pertinent medical evidence and lay assertions. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.