Citation Nr: 21041346 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-50 699 DATE: July 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for hypertension, including as due to herbicide exposure is denied. FINDINGS OF FACT 1. Prior to death, the Veteran did not have a bilateral hearing loss disability for VA compensation purposes. 2. Prior to death, the Veteran was diagnosed with hypertension. 3. There was no cardiovascular injury or disease during service, and symptoms of hypertension did not begin during active service and were not chronic in service. 4. Hypertension did not manifest to a compensable degree within one year of active service. 5. Symptoms of hypertension were not continuous since service. 6. The Veteran's hypertension was not due to presumed in service exposure to the herbicide Agent Orange. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. 2. Hypertension was not incurred in active service and may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1961 to September 1964. The Veteran died in November 2016. The appellant is the surviving spouse of the Veteran, who is substituted as the appellant for purposes of adjudicating the issues on appeal to completion. See 38 U.S.C. § 5121A (allowing for substitution in case of death of a claimant who dies on or after October 10, 2008). This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The appellant testified at a February 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The instant matter was previously before the Board in March 2021, where, in pertinent part, the remaining issues on appeal were remanded for additional development. Review of the record reflects, as discussed in further detail below, that the Board's March 2021 remand directives were satisfied by the Agency of Original Jurisdiction (AOJ) to the extent possible. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Concerning the duty to notify, the record reflects that adequate VCAA notice was issued during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation to the extent possible and obtained an adequate hypertension opinion in May 2021. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Service Connection Legal Authority Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hypertension and hearing loss (as an organic disease of the nervous system) are "chronic" diseases under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to that issue. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and a chronic disease become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1133, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. "Service" in the Republic of Vietnam includes (but is not limited to) duty on aircraft carriers and other ships operating temporarily within the 12 nautical miles of territorial seas of the Republic of Vietnam. 38 U.S.C. § 1116A; Procopio, 913 F.3d 1371. Hypertension is not on the list of herbicide presumptive diseases. 38 C.F.R. § 3.309(c). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service Connection for Bilateral Hearing Loss is Denied. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Prior to death, in an April 2016 claim, the Veteran sought service connection for bilateral hearing loss. While the report from a February 2006 VA treatment record indicates that the Veteran conveyed being hard of hearing at that time, subsequent VA treatment records do not reflect right or left ear hearing loss disability following, or just prior to, the filing of the April 2016 claim. Further, there are no audiometric examinations of record supporting that, between just prior to the filing of the April 2016 claim and the Veteran's death, the Veteran had a bilateral hearing loss disability for VA compensation purposes. The Veteran was scheduled for a VA audiometric examination on July 11, 2016. Unfortunately, the Veteran did not appear for that examination. As discussed above, the appellant testified at a February 2021 virtual Board hearing. At that time, the appellant testified that, while the Veteran did have hearing aids prior to death, they were not prescribed through VA. Rather, the Veteran obtained the hearing aids through a private provider. The appellant was asked to obtain and submit these outstanding private audiometric records to the Board for consideration. The appellant did not submit the purported outstanding private audiometric treatment records following the February 2021 virtual Board hearing, and in a March 2021 decision, the Board remanded the issue of service connection for bilateral hearing loss to request that the appellant submit the necessary information to allow VA to obtain the outstanding private audiometric treatment records. Following remand, the appellant was sent a letter by VA in April 2021 asking that she provide the necessary information and releases to allow VA to obtain the outstanding private audiometric treatment records. To date, the appellant has not provided the requested information concerning the Veteran's private audiometric treatment. As such, the Board finds that VA has made every reasonable effort to obtain the purported outstanding private audiometric treatment records, and remand to again attempt to obtain these records is not warranted. In sum, during the course of this appeal, VA has not received any evidence supporting that, prior to death, the Veteran had a bilateral hearing loss disability for VA compensation purposes (38 C.F.R. § 3.385). As such, the preponderance of the evidence is against a finding that, prior to death, the Veteran had a hearing loss disability for VA compensation purposes (38 C.F.R. § 3.385) in either ear, and service connection for a bilateral hearing loss disability must be denied. 2. Service Connection for Hypertension is Denied. Prior to death, in the April 2016 claim, the Veteran argued that diagnosed hypertension was due to in-service Agent Orange/herbicide exposure. Review of the evidence of record, to include VA treatment records and the report from a February 2016 private hypertension disability benefits questionnaire (DBQ), reflect that, prior to death, the Veteran was diagnosed with hypertension. Pursuant to Diagnostic Code 7101, Note 1, for VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104. Service treatment records reflect that at service entrance the Veteran had a blood pressure reading of 150/90; however, there is no indication that the Veteran was diagnosed with hypertension at that time. Subsequently, during service no diastolic blood pressure readings of 90 mm. or greater were recorded, no systolic blood pressure readings of 160 mm. or greater were recorded, and there were no other findings or indicators of hypertension. At the time of the June 1964 service separation examination, the Veteran's blood pressure was 124/64. In the corresponding report of medical history, the Veteran explicitly denied having high blood pressure. Nothing in the service treatment records indicate that the Veteran complained of, sought treatment for, or was diagnosed with, any cardiovascular injury or disease during service. For these reasons, the Board finds that there was no cardiovascular injury or disease during service, and symptoms of hypertension were not chronic in service. The weight of the evidence also shows that symptoms of hypertension were not continuous after service, including not to a compensable degree within one year of service. Per the report from the May 2021 VA hypertension opinion, review of the VA treatment records reflect that the Veteran was diagnosed with, and treated for, hypertension on or about 2006, which was approximately 40 years post service separation. Such evidence is supported by the other evidence of record, to include the Veteran's privately submitted February 2016 hypertension DBQ, which actually listed a later diagnosis date of 2011. At the time of the February 2021 virtual Board hearing, the appellant did not testify that the Veteran had manifested symptoms of hypertension prior to 2006. The approximately 40-year period between service and the onset of hypertension is one factor that weighs against a finding of service incurrence, including by continuous symptoms since service from which service incurrence would be presumed. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Additional factors weighing against continuous symptomatology since service include the Veteran's normal blood pressure readings at service separation and the medical evidence of record. Finally, while the evidence does not reflect that the Veteran suffered a cardiovascular injury or disease during service, in its March 2021 decision, the Board found that during service the Veteran served in the Republic of Vietnam and was presumed to have been exposed to the herbicide Agent Orange. After a review of all the relevant evidence of record, the Board finds that the Veteran's hypertension was not due to the in service exposure to the herbicide Agent Orange. As discussed above, during the course of this appeal VA received a February 2016 private hypertension DBQ; however, the hypertension DBQ does not indicate that the private physician attributed the hypertension to in-service herbicide exposure. Further, a review of the VA treatment records also does not indicate that any VA physician found that the hypertension was due to in-service herbicide exposure. In its March 2021 decision, the Board remanded the question of whether diagnosed hypertension was due to presumed Agent Orange exposure for a VA medical opinion. Further, VA also directed that the VA examiner consider various articles discussing the possible association between hypertension and herbicide exposure. VA received the requested VA medical opinion in May 2021. Per the opinion report, the VA examiner considered the relevant medical literature, to include the literature cited to by the Board in March 2021. After reviewing the medical evidence of record and consulting the medical literature, the VA examiner opined it less likely than not that the Veteran's hypertension was due to presumed in-service herbicide/Agent Orange exposure. In support of the above opinion, the VA examiner explained that, prior to death, and at the time of the 2006 hypertension diagnosis, the Veteran had a number of known risk factors for hypertension as shown in the medical literature. Specifically, the Veteran had the hypertension risk factors of age, obesity, and family history. The medical evidence of record specifically showed the Veteran to be obese at the time hypertension was first diagnosed. As such, the VA examiner found that, even when considering the medical literature discussing hypertension and herbicide exposure, under the facts and circumstances of this particular case, considering the Veteran's specific medical history, it was more likely than not that the Veteran's hypertension, diagnosed 40-years post-service separation, was due to the non-service risk factors of age, obesity, and family history. To date, VA has not received any medical evidence contradicting the assumptions or opinion of the VA examiner in May 2021. Although the Veteran and appellant have previously asserted that the currently diagnosed hypertension was due to presumed in-service herbicide exposure, as lay persons, under the facts of this particular case, they do not have the requisite medical training or credentials to be able to render a competent opinion regarding the cause of the hypertension. The etiology of the Veteran's hypertension is a complex medical question involving internal disease processes. Thus, while the Veteran was competent to report some hypertension symptoms experienced at any time, and the appellant is competent to describe the Veteran's past observable symptoms, there are few observable symptoms of hypertension until hypertension is at a crisis stage, and some symptoms of hypertension such as dizziness or nosebleeds are common symptoms that overlap with symptoms of other disorders, so would require the ability to differentiate such symptoms attributable to hypertension from other common symptoms. For these reasons, under the facts of this case, the Veteran and appellant are not competent to opine on whether there is a link between the hypertension and herbicide/Agent Orange exposure. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) ("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"). For the above reasons, the Board finds that the weight of the evidence is against direct or presumptive service connection for hypertension under the provisions of 38 C.F.R. §§ 3.303, 3.307, and 3.309. As the preponderance of the evidence is against service connection, the claim must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.