Citation Nr: 21031703 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-17 417 DATE: May 24, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include rhinitis and sinusitis, is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for diabetes mellitus-Type II, due to exposure to in-service toxins, to include burn pits in Adak, Alaska, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's current rhinitis had its onset in or is otherwise etiologically related to his period of active service. 2. The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss had its onset in or is otherwise etiologically related to his period of active service, to include in-service hazardous noise exposure. 3. The Veteran's hypertension manifested within a year after separation of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disorder, to include rhinitis and sinusitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Navy from October 1967 to December 1968. These issues come before the Board of Veterans' Appeals from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran had initially been denied entitlement to service connection for hypertension and bilateral hearing loss in a May 2007 rating decision. The Veteran did not appeal the issue within a year and the decision then became final. In June 2015, the Veteran filed a claim seeking to reopen the service connection claim for hypertension while also filing a new claim for service connection for diabetes mellitus. In October 2015, the Veteran attempted to reopen the service connection claim for bilateral hearing loss. The Veteran also filed new claims for service connection for tinnitus and sinusitis. These claims were all denied in the December 2015 rating decision, and the Veteran appealed. In October 2019, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In a January 2020 decision, the Board reopened the claims for hypertension and bilateral hearing loss and remanded them for further development and VA examinations. The Board also remanded the issues of sinusitis and diabetes mellitus for further development and new VA examinations as well. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The Board is satisfied that there was substantial compliance with three of the remand orders and is prepared to adjudicate those three issues. See Dyment v. West, 13 Vet. App. 141,146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The other issue must be remanded again, due to an inadequate VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be presumed for certain chronic diseases, including hypertension, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate that a condition was noted during service; evidence of post- service continuity of the same symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a respiratory disorder, to include rhinitis and sinusitis The Veteran contends he is due entitlement to service connection for chronic sinusitis. Specifically, the Veteran claims that he suffers chronic congestion every morning when waking up and treats his chronic condition with frequently blowing his nose. The Veteran also testified during the Board hearing that he suffers from sinus symptoms on and off, especially during the cold and winter months. The Veteran's service treatment records (STRs) show that he was diagnosed and treated for sinusitis in January 1968, while in service. The Veteran reported with chills, fever, a sore throat, and sinus pain. However, after being treated in January 1968, there are no other records from service showing treatment for sinusitis. There are also no medical records post-service showing the Veteran experiences chronic sinusitis, although the Veteran offers statements stating that his current sinus conditions are similar to those conditions he suffered from in-service. In October 2020, the Veteran received a VA examination for his claimed sinusitis. The examiner diagnosed the Veteran with allergic rhinitis and noted the Veteran's reports of chronic symptoms including runny nose, postnasal drip, itchy red eyes and frequent blowing of his nose. The Veteran claims he has been experiencing these symptoms since his time in service. The examiner found that none of the issues the Veteran was reporting were caused by rhinitis. The Veteran also received an x-ray of the sinuses. While the clinical condition was noted as chronic congestion, the x-ray showed a normal sinus series. After a review of the evidence on record and an exam of the Veteran, the examiner opined that his current rhinitis was less likely than not incurred in or caused by any claimed in-service injury, event, or illness. The examiner noted the Veteran's current rhinitis, as well as the diagnosis of bacterial sinusitis that the Veteran received in January 1968. However, the examiner stated that acute bacterial sinusitis is not precedent for chronic sinusitis or chronic rhinitis. Therefore, the examiner found that the Veteran's present chronic conditionrhinitiswas unrelated to service. After a full and thorough review of the record, the Board agrees and continues the denial of service connection for the Veteran's sinus condition. As noted above, to establish service connection, the Veteran must show a present disability, a disability incurred in-service, and a nexus between the two. Here, the Veteran shows a condition in-service, as he was treated for acute sinusitis in January 1968. The Veteran is also diagnosed with allergic rhinitis as a present disability. However, there is no nexus or causal relationship between the two. As the VA examiner notes, there is no evidence that acute bacterial sinusitis leads to long-standing, chronic sinusitis or rhinitis. There is no medical evidence to the contrary. Lay evidence that is submitted in the record must be competent and credible. Competent lay evidence is any evidence not requiring that the proponent have any specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). The Veteran's lay statements may be competent to testify to symptoms, so long as they are directly observable and do not require a specialized knowledge or training to describe. Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). The Veteran asserts that his sinus symptoms have been recurrent since service. The Veteran is competent to provide this evidence and the Board has no reason to doubt the Veteran's assertions. However, although the Veteran does offer competent lay statements in regard to his current symptoms, he is not competent to diagnose his chronic sinusitis or rhinitis or establish a nexus between his current diagnosis and service. In any event, the probative value of the Veteran's contentions is outweighed by the October 2020 VA examiner's opinions. Therefore, the Board finds a preponderance of the evidence is against the Veteran. In determining 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making this determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not for application, and service connection for his sinusitis must be denied. 2. Entitlement to service connection for bilateral hearing loss The Veteran's claim of service connection for bilateral hearing loss was reopened by the Board in January 2020, due to new and material evidence. 38 U.S.C. § 5108; see Evans v. Brown, 9 Vet. App. 273, 285; see also Shade v. Shinseki 24 Vet. App. 110, 117 (2010). The new and material evidence came in the March 2018 substantive appeal and October 2019 Board hearing, in which the Veteran fully explained his work operating the radio station in Adak, Alaska, where he was exposed to loud noise. The Veteran noted that he wore headsets that delivered loud noise directly to his ears. Further, at the Board hearing, the Veteran again described his exposure to excessive noise in service and claimed that he still had hearing loss. The Board has found the Veteran's statements of excessive noise exposure to be credible. Service connection may not be established for disability due to hearing impairment unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The only in-service audiological examination on record is the Veteran's 1966 entry examination. This test showed normal hearing. The Veteran did not receive a separation audio examination. The Veteran's original claim for bilateral hearing loss was filed in September 2006. Subsequently, the Veteran was afforded a VA examination of his hearing loss in April 2007. Puretone threshold testing was done, and a speech recognition score was issued using the Maryland CNC word list. The puretone threshold test on the left ear showed 0 dB loss at 500 Hz, 5 dB loss at 1000 Hz, 0 dB loss at 2000 Hz, 10 dB loss at 3000 Hz, and 30 dB loss at 4000 Hz for an average decibel loss of 11. The left ear also showed the left ear to have a 100 percent speech discrimination score. These findings do not meet the threshold to establish service connection for hearing impairment. The right ear Puretone threshold test presented 0 dB loss at 500 Hz, 4 dB loss at 1000 Hz, 0 dB loss at 2000 Hz, 0 dB loss at 3000 Hz, and 25 dB loss at 4000 Hz. The speech discrimination score on the right ear was also 100 percent. These numbers also do not meet the threshold required for service-connected hearing impairment. The examiner found hearing to be within normal limits with some mild to moderate high frequency hearing loss. The Veteran also was found to have excellent speech discrimination scores bilaterally. For VA rating purposes, the Veteran was found to present hearing within normal limits. Once the Veteran's claim for hearing loss was reopened, the Board remanded the claim for another VA examination. The Veteran was afforded another audio examination in October 2020. On this exam, puretone threshold testing was performed again. The left ear showed dB loss of 20 at 1000 Hz, 15 dB loss at 2000 Hz, 20 at 3000 Hz, and 50 at 4000 Hz for an average decibel loss of 26.25. The speech discrimination score was still found to be 100 percent in the left ear. The right ear Puretone threshold testing showed a dB loss of 25 at 1000 Hz, 20 at 2000 Hz, 25 at 3000 Hz, and 50 at 4000 Hz for an average decibel loss of 30. The speech discrimination score of the right ear was also found to have dropped slightly since 2007, to 96 percent. The examiner found the Veteran to have sensorineural hearing loss in both ears. The Veteran also met the auditory threshold for service connection of hearing impairment. However, the examiner still found that the Vet's hearing loss was less likely than not caused by or a result of an event in military service. The examiner stated that the Veteran's job in service was not remarkable for acoustic trauma. While the Veteran was deemed credible to report his in-service noise exposure, his original claim for hearing loss was not submitted until 2006, which led to a hearing examination to be conducted approximately 39 years after his active duty service. The 2007 examination showed the Veteran presenting clinically normal hearing in both ears that did not meet VA criteria for rating purposes. The STRs are also silent for complaint, diagnosis, or treatment of ay hearing impairment as well. Finally, given the 2020 exam with moderate hearing loss, the examiner finds that presbycusis (age related hearing loss) is the more likely cause of hearing loss. The Board has considered that the Veteran is competent to report noise exposure during his active service. However, he is not competent to retrospectively diagnose himself with in-service hearing loss, and he is not competent to link any current hearing loss first documented decades after his military service to in-service disease or injury, including noise exposure. This issue is medically complex and requires specialized knowledge of the anatomy of the ear, its mechanisms for hearing, and disease processes (including the effect of acoustic injury). Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The etiology of delayed onset hearing loss is simply not susceptible to lay observation. Notably, there is no evidence of diagnosis of hearing loss until more than four decades after service discharge. Alternatively, the Board assigns great probative value to the service treatment records, which demonstrate normal clinical evaluation, and the negative October 2020 VA medical opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue). The VA medical opinion was prepared by an audiologist after examination of the Veteran and review of relevant medical records. Further, it is supported by a complete rationale. See Prejean v. West, 13 Vet. App. 444, 448 49 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has not provided a favorable medical opinion to the contrary. After a review of the above, the Board finds that service connection for bilateral hearing loss is not warranted and the claim must be denied. 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53. 3. Entitlement to service connection for hypertension The Veteran's claim of service connection for hypertension was also reopened by the Board in January 2020, due to new and material evidence. 38 U.S.C. § 5108; see Evans v. Brown, 9 Vet. App. 273, 285; see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran made lay statements about an early diagnosis of hypertension and being prescribed medication for his hypertension within a year after service. The Veteran also obtained private medical records from Dr. R and Dr. G, both of whom have treated his present hypertension. These records were found to satisfy the requirements for new and material evidence. The Board subsequently reopened the claim and remanded it for a VA examination and further development in January 2020. In the Veteran's original claim of service connection for his hypertension, he stated that the hypertension began in 1968. However, in the May 2007 rating decision and April 2008 statement of the case, the Vet was denied service connection for hypertension because his blood pressure readings recorded in the STRs were normal and there was no evidence that showed hypertension being diagnosed or treated in-service or within one year after discharge. The Veteran's private treatment records included in the file at the time of the original claim also did not cast light on when the Veteran was first diagnosed with the hypertension. The Veteran now has submitted medical records from two of his treating physicians, indicating he was taking hypertension medication in 1969. Although the information appears to come from the Veteran personally, he provided consistent medical history to two different physicians while seeking treatment. The Veteran is competent to provide lay evidence of what he experiences, to the extent that it does not require specialized knowledge. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). Lay statements found in medical records when medical treatment is being rendered may be afforded greater probative value as well. Statements made to physicians for the purposes of a diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Thus, medical records incorporating the Vet's medical history may have substantial probative weight. Specifically, in October 1997, Dr. R's treating physician records show that the Veteran presented, seeking medication for his hypertension. The hypertension was stated to have previously been under control by diet and exercise. At the time of the consultation with Dr. R the Veteran's blood pressure was measured at 160/100. The Veteran stated that he had not been on hypertension medication in a long time but that he had been on it in the past. In November 1997, the Veteran had his first consultation with Dr. G. Dr. G recorded that the Veteran had a longstanding history of "labile hypertension" that was first diagnosed in 1965 and was first treated in 1969 with medication (specifically with hydrochlorothiazide). It was noted that the Veteran was on the medication for a few years and then self-discontinued. He was then managing hypertension between 1969 and 1989 through careful diet and exercise. However, the Veteran's blood pressure began to rise before he finally decided to see Dr. R in 1997. Dr. G also noted that the medication he was prescribed by Dr. R was helping bring his blood pressure down. Before the medication, the Veteran's readings were between 140 to 190 over 70 to 90. In June 2015, Dr. G submitted a VA disability benefits questionnaire (DBQ) that again stated that the Veteran initially began taking medication for his hypertension in 1969. The Veteran provided a separate statement from his spouse, who is a medical doctor, indicating that when she met the Veteran in 1985, he was taking medication for hypertension. The question for the Board now is whether the Veteran's hypertension was present in service, manifested to a compensable level within one year from his date of discharge, or whether all of the evidence of record otherwise points to service as the source of his hypertension. In April 2018, Dr. G also submitted a letter that was added to the record. In the letter Dr. G claims that he has been the Veteran's cardiovascular doctor for the past 15 to 20 years and has assisted in treating the Veteran's hypertension that was diagnosed prior to visiting Dr. G's practice. Dr. G asserts that the Veteran had been prescribed medication for his hypertension within a year after being released from active duty. Dr. G also states that the Veteran was under significant duress during his time in the Navy and that he was apparently threatened with a court-martial which may have played a role in his development of hypertension. The Veteran was afforded a VA examination for his hypertension in October 2020. The examiner reviewed all of the evidence of the record and conducted an in-person exam of the Veteran. The examiner opined that the Veteran's hypertension was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale the examiner clarified his finding, stating that "it is appropriate to say" that the Veteran's hypertension started within one year after separation from active duty. The examiner continued by saying that based on the reporting by the Veteran's physician, specifically noting that the Veteran began taking blood pressure medication in 1969, the evidence supports a finding that the claimed condition is at least as likely as not incurred within one year of the Veteran's separation from service. After a full and thorough review of the record, the Board finds that service connection is warranted for hypertension. As stated above, service connection may be presumed for certain chronic diseases, such as hypertension, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Here, the presumption is not rebutted by any probative evidence to the contrary. The Veteran's consistent lay statements to his private medical providers, the DBQ and letter from Dr. G, and the VA examiner's findings all lead the Board to conclude that the weight of the evidence supports a finding that the Veteran's hypertension began within one year of his separation from service. Service connection is therefore warranted; the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus-Type II, due to exposure to in-service toxins, to include burn pits in Adak, Alaska, is remanded. The Veteran initially brought a claim of service connection for diabetes mellitus, due to Agent Orange exposure. The Veteran claimed that there were rumors that Agent Orange was present on Adak Island, Alaska, where he was stationed. The claim was initially denied as the RO found no evidence that the Veteran had any exposure to Agent Orange. However, during the hearing in October 2019, the Veteran raised two new theories of entitlement for his diabetes mellitus. First, he claimed that the military diet was high in sugar content which could have caused his diabetes. Second, the Veteran claims that open pit burning occurred on the island and that there may have been other herbicides on Adak Island that he was unaware of. The Veteran's claim was then remanded for a VA examination in the January 2020 Board decision. The remand directive specifically stated that the examiner must offer comment and opinion addressing whether it is at least as likely as not that the Veteran's diabetes mellitus-Type II began during service, within one year of service separation, or is otherwise etiologically related to service. The examiner was directed to specifically discuss any connection between the Veteran's diabetes mellitus and exposure to the military diet or to open burn pits on Adak Island. The October 2020 examiner held that the Veteran's diabetes mellitus was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. On the examiner's rationale, the examiner claimed that specific food such as a "military diet" is not among the risk factors identified for the condition of diabetes. The examiner also stated that it is conceded that Adak Island had environmental contamination and physical hazards. However, the examiner stated that the diabetes was not due to military activities or related to the military diet. The examiner did not specifically discuss or reference open burn pits on the exam. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. The matters are REMANDED for the following action: Obtain an addendum opinion that discusses whether it is at least as likely as not that the conceded environmental toxins, specifically to include open burn pits on Adak Island, caused the Veteran's diabetes mellitus-Type II. The claims file and a copy of this remand must be made available to the examiner, and the examiner must indicate in the addendum that the claims file was completely reviewed. The need for another examination is left to the discretion of the examiner. All opinions expressed by the examiner must be accompanied by a complete rationale. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.