Citation Nr: 22057763 Decision Date: 10/13/22 Archive Date: 10/13/22 DOCKET NO. 17-47 441 DATE: October 13, 2022 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for stroke is remanded. Entitlement to a temporary 100 percent evaluation due to hospitalization and convalescence is remanded. Entitlement to special monthly compensation based on aid and attendance or by reason of being housebound is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had hearing loss for VA purposes at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that the Veteran has had tinnitus at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to January 1973. The Veteran died in October 2016. The appellant is the Veteran's surviving spouse. In the September 2017 VA Form 9, the appellant requested a Board hearing. The appellant was scheduled for hearings in May 2022 and August 2022, but did not appear. In August 2022, the appellant waived her request for a hearing and asked for an extension to submit new evidence. The extension was granted and has passed. SERVICE CONNECTION 1. Entitlement to service connection for hearing loss 2. Entitlement to service connection for tinnitus The appellant contends that the Veteran suffered from bilateral hearing loss and tinnitus caused by exposure to noise during service. Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including organic disease of the nervous system, such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of a hearing loss claim, impaired hearing will be considered a disability by VA when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz 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. In August 2016, the Veteran was scheduled for a VA audiological examination. Unfortunately, the Veteran was unable to attend this examination due to a stroke. While this constitutes good cause for a rescheduled examination, a new audiological examination is impossible as the Veteran has passed away. The appellant has stated that she is looking for the results from a hearing examination with a private audiologist. However, no private hearing examination results have been submitted. The available medical evidence of record does not support a diagnosis of hearing loss or tinnitus. In an April 2016 private treatment record, a review of symptoms found no hearing loss. In a May 2016 private treatment record, it was noted that the Veteran hears adequately. The Veteran received frequent treatment during the period on appeal for his heart and stroke conditions. If the Veteran was experiencing hearing loss and tinnitus during this time, it would be reasonable to conclude that he would have told this to his treatment provider, or that a treatment provider would note difficulty understanding spoken words. In this case, the available medical records are silent for such complaints. Although the Veteran has made general claims of service connection for hearing loss and tinnitus, the Veteran was not able to provide any specific statements regarding the onset, nature, and severity of his hearing loss or tinnitus before his death. Ultimately, in the absence of valid puretone tests and Maryland CNC word scores, a current hearing loss disability in either ear for VA purposes cannot be established. 38 C.F.R. § 3.385. Furthermore, without any statements or diagnosis of tinnitus in the record, a tinnitus disability cannot be established. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Regarding the Veteran's claims for bilateral hearing loss and tinnitus, in the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the appellant's statements that the Veteran had bilateral hearing loss and tinnitus. While the appellant is competent to report observable symptoms, such as observing the Veteran having difficulty hearing, in this case she is not competent to independently render a medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Without competent evidence of a diagnosis of a bilateral hearing loss disability under 38 C.F.R. § 3.385, or statements from the Veteran that he experienced tinnitus, the Board must deny the Veteran's claims. Although grateful for the Veteran's honorable service, the Board concludes that the evidence persuasively favors against the claims for service connection and the benefit of the doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to service connection for a heart condition is remanded. 2. Entitlement to service connection for stroke is remanded. The appellant contends that the Veteran suffered from heart disease and associated stroke related to his exposure to herbicide agents while serving in Vietnam. The Veteran's DD Form 214 notes that the Veteran served in Vietnam. A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. §§ 3.307 (a)(6), (d); 3.309(e). Thus, if a Veteran meets the requirements of the herbicide agent presumption and has a current diagnosis from the list of specified diseases, such as ischemic heart disease (IHD), VA will presume in-service incurrence and a causal relationship, and grant service connection. Even in such cases, however, the Veteran must have a current diagnosis of a qualifying disease. The record shows treatment for a heart condition, but it is unclear whether the Veteran's condition fits the diagnosis of ischemic heart disease. Although the Veteran was unable to attend VA medical examinations due to his stroke, and the Veteran died before another examination could be scheduled, the Board finds that this does not preclude a VA medical examiner from reviewing the record and providing a medical opinion based on the Veteran's medical history. Remand is warranted for a VA medical examiner to review the Veteran's record and provide an opinion as to whether or not the Veteran's heart condition meets a diagnosis of IHD, or if not, whether the Veteran's heart condition is otherwise related to service. The VA medical examiner should also opine as to whether the Veteran's stroke was related to this heart condition, and/or directly related to service. 3. Entitlement to a temporary 100 percent evaluation due to hospitalization and convalescence is remanded. 4. Entitlement to special monthly compensation based on aid and attendance or by reason of being housebound is remanded. The appellant contends that the Veteran is entitled to a temporary 100 percent rating for hospitalization and convalescence, and entitled to special monthly compensation for aid and attendance, due to his service-connected disabilities. Under certain circumstances, VA rules allow for the assignment of a temporary 100 percent rating for hospitalization and convalescence due to a service-connected disability. See 38 C.F.R. § 4.29, 4.30. Furthermore, VA may provide special monthly compensation for a Veteran who requires aid and attendance. See 38 C.F.R. § 3.350. However, as a prerequisite for temporary rating and special monthly compensation, the Veteran must first have a service-connected disability. As of this decision, the Veteran was not service-connected for any conditions at the time of his death. Because a decision on the remanded issues of service connection for a heart condition and stroke could significantly impact a decision on the issue of a temporary 100 percent rating and special monthly compensation, the issues are inextricably intertwined. A remand of the claims for temporary 100 percent rating and special monthly compensation is required. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate clinician for a medical opinion. The examiner is asked to opine as to the following: (a.) Did the Veteran have a diagnosis of ischemic heart disease? (b.) If the Veteran did not have a diagnosis of ischemic heart disease, was the Veteran's heart condition related to service, to include exposure to herbicide agents? 1. If the Veteran is found to have a service-connected heart condition, then was the Veteran's stroke caused by or aggravated by his service-connected heart condition? 2. If the Veteran is not found to have a service-connected heart condition, was the Veteran's stroke directly related to service, to include exposure to herbicide agents? 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to a temporary 100 percent rating and special monthly compensation. If the benefits sought are not granted to the appellant's satisfaction, send the appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.