Citation Nr: 21027646 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-31 508A DATE: May 6, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran's bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1980 to January 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In March 2018 and December 2019, the Board remanded the case to the RO for additional development. As the requested development has been completed for the Veteran's claim for bilateral hearing loss, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's appeal originally included claims for service connection for obstructive sleep apnea and service connection for tinnitus. In a July 2020 rating decision, the RO granted service connection for both claims. This is considered a full grant of the benefit sought on the appeal for the two claims of service connection for obstructive sleep apnea and tinnitus. Holland v. Gober, 10 Vet. App. 433, 436 (1997). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system like sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, 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 C.F.R. §§ 3.307(a)(3), 3.309(a). For the purposes of applying VA law, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran has a current bilateral hearing loss disability. For example, at his April 2019 VA examination he was diagnosed with bilateral sensorineural hearing loss. Thus, the remaining question is whether the current bilateral hearing loss disability is related to service. At entrance, in February 1990, the Veteran underwent an audiological examination with the pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 5 LEFT 15 5 0 5 0 The Board notes during service, the Veteran received two audiological tests in August 1980 and earlier in December 1982. Both those examinations demonstrated normal hearing. At his December 1982 separation examination, audiometric testing with the pure tone thresholds, in decibels, showed: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 5 5 LEFT 10 10 10 5 10 The Veteran reported other ailments during service. Hearing loss is the type of problem that a reasonable person would report while in the military when seeking treatment. If the Veteran was experiencing problems with his hearing during service, the Board would expect that he would have reported these problems to medical professionals. In a report of medical history at separation, the Veteran reported other symptoms such as headaches. Hearing loss was not reported. Again, if hearing loss was present during service, the Board would expect the Veteran would have reported hearing loss at separation when describing his medical history and current symptoms. A hearing loss disability is not shown by medical evidence until a December 2014 VA examination. As sensorineural hearing loss is not shown to have been present during service or in the first year after separation from service, and continuity of symptomatology leading to a diagnosis of sensorineural hearing loss is not shown, in-service incurrence of sensorineural hearing loss cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). While in-service incurrence cannot be presumed, the question remains as to whether the Veteran's current hearing loss is otherwise related to service. The Veteran had noise exposure while serving aborad aircraft carriers. His bunk was located near the anchor and the catapult. In addition, his duties often required his presence on the flight deck. He started to notice that it was difficult to hear when people talked to him. Statements from friends and family also establish that he has difficulties in conversations. None of these statements reported the Veteran had difficulty shortly after separation. Instead, the statements point to the Veteran's current difficulties. The Veteran presented for VA examinations in July 2011 and April 2019, at these times he was interviewed by the examiners who also reviewed the pertinent medical history and performed examinations. The examiners concluded it was less likely than not that the Veteran has a hearing loss disability related to service. In support of this conclusion, the July 2011 examiner explained that all hearing evaluations, including the separation examination, were normal. The April 2019 VA examiner also noted that service treatment records showed no hearing loss or significant hearing threshold shifts throughout service. The lack of a significant threshold shift is evidence that no permanent auditory damage occurred on active duty. Furthermore, there was no record of complaint or treatment of decreased hearing. In February 2020, a third VA examiner also concluded that it was less likely than not the Veteran's hearing loss occurred due to service. Although the Veteran suffered hazardous noise exposure, service hearing exams showed normal hearing bilaterally. According to the examiner, a 2006 medical study noted the evidence is insufficient to determine whether permanent noise-induced hearing loss can develop later in life after noise exposure ends. The study concluded it is unlikely that delayed onset effects occur. Thus, the VA examiner found there was no reasonable basis to conclude the Veteran had delayed-onset hearing loss attributable to his service. Given the lack of significant hearing changes found in service, and the medical study conclusion that it is unlikely delayed onset of hearing loss can occur, the examiner thus concluded it is less likely than not that the Veteran's hearing loss is related to military noise. Instead, the examiner attributed the Veteran's hearing loss to aging or other factors outside of service. The Board finds these opinions highly probative as they were made by medical professionals with consideration of the specific facts in this case and after examination of the Veteran. The opinions are also supported by other evidence of record, such as a hearing test report near the time of separation from service showing no hearing loss disability. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. The Board recognizes the Veteran's service representative argues that the Veteran's service noise exposure argues may have aggravated or accelerated the Veteran's hearing loss. The representative, however, only provided a cite to home page of the National Institute on Deafness and Other Communication Disorders. At best, the representative has offered only a generic statement without how the specific facts in the Veteran's case apply. Generic statements concerning only medical possibilities are too general and inconclusive to provide the requisite degree of medical certainty. Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). The Board places greater probative weight upon the Medical opinions of record including the 2020 VA examiner who explained how the 2006 study specifically applies to the Veteran. The Board has considered the Veteran's statements, to include his assertions that his hearing loss is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., problems hearing other people; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. With apologies to the Veteran, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims for service connection. A previous remand confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Both the April 2019 and now the February 2020 VA examiner rendered negative etiological opinions essentially based on a lack of in-service complaints, treatment, or diagnosis. The opinions failed to provide a fully reasoned rationale. Such opinions are therefore inadequate, and an addendum must be obtained on remand. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (lack of documented findings is not an adequate basis for a negative opinion). Ongoing medical treatment records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his hypertension claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current hypertension had its onset during service or is otherwise related to an in-service injury, event, or disease, to include treatment for dizziness in February 1981. In offering the opinion, the examiner is asked to consider and must discuss the Veteran's testimony that in service he began to experience dizziness, sought treatment, and was placed upon hypertension medication. The examiner is advised that the lack of contemporaneous records, alone, is insufficient rationale for a medical nexus opinion The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner should explain why this is so. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.