Citation Nr: 22016241 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 14-20 392A DATE: March 21, 2022 ORDER Entitlement to service connection for lumbar spondylosis is granted. Entitlement to service connection for hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent for hypertension is denied. REMANDED Entitlement to service connection for glaucoma is remanded. Entitlement to service connection for right eye blindness is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates his lumbar spondylosis was incurred during his active service. 2. The evidence persuasively supports that a hearing loss disability not been shown in either the right ear or left ear during the pendency of the Veteran's appeal, and therefore there is no benefit of the doubt to resolve in the Veteran's favor. 3. The probative evidence of record demonstrates that the Veteran's current hypertension is productive of systolic pressure predominantly 160 mm/Hg or more, though not rising to the level of 200 mm/Hg or more, and diastolic pressure not rising to the level of 110 mm/Hg or more, throughout the duration of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spondylosis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for an initial disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to May 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2011 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board in February 2021. A transcript of that hearing has been associated with the claims file. In a May 2021 decision, the Board dismissed the issues of increased ratings for residuals of cold injuries to the left foot and right foot and remanded the remaining issues on appeal for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Lumbar Spondylosis The Veteran asserts that he was treated in service for his back and continued having back problems since that time. The Board concludes that the Veteran has a current lumbar spine disability, diagnosed as lumbar spondylosis, that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA examinations and VA outpatient treatment records demonstrate the Veteran has been treated for back pain and has a current diagnosis of lumbar spondylosis. Service treatment records (STRs) demonstrate the Veteran reported a history of recurrent back pain on the Report of Medical History at the time of his separation from active service. Thus, the question becomes whether the current disability is related to service. The probative evidence of record demonstrates a nexus between the Veteran's in-service back problems and his current diagnosis of lumbar spondylosis. The post service medical evidence of record, including VA outpatient treatment records from January 2011 to November 2021 and VA examinations from June 2011 and September 2021, demonstrates the Veteran has been treated for complaints of low back pain and was diagnosed with lumbar spondylosis. Although the June 2011 and September 2021 VA opinions reflect that the VA examiners found it was less likely than not that the lumbar spine disability was incurred in or otherwise related to the Veteran's active service or caused or aggravated by any service-connected disabilities, they failed to address the Veteran's competent lay statements of a continuity of symptoms in service. These opinions rather, focused on a lack of treatment since service. The Board observes the Veteran's lay statements and testimony of back pain beginning in service and continuing since that time, which he is competent to report, and these reports of lay observable symptoms are credible as they are consistent with the overall evidence of record, including the STRs demonstrating his reported history of recurrent back pain in service. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Baldwin v. West, 13 Vet. App. 1 (1999). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar spine disability, diagnosed as lumbar spondylosis, was incurred in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a lumbar spine disability, diagnosed as spondylosis and spondylolisthesis with radiculopathy, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 using the Maryland (MD) CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts he has a hearing loss disability. At his February 2021 virtual hearing, he testified that he was diagnosed with hearing loss at a VA examination and that his hearing loss had gotten worse. The Veteran's DD Form 214 reflects his military occupational specialty (MOS) was that of an Infantryman, thereby supporting his statements of exposure to excessive noise during active service. See 38 U.S.C. § 1154. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Baldwin v. West, 13 Vet. App. 1 (1999); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). During the pendency of the appeal, there have been no auditory threshold in any of the relevant frequencies at 40 decibels or greater, there were not three frequencies at greater than 26 decibels, and all speech recognition scores were at or above 94 percent, thereby not meeting the criteria to qualify as a hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385. The results of the audiometric testing in the June 2011 VA examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 20 25 20 LEFT 20 10 15 20 25 Speech discrimination scores using the MD CNC word recognition list revealed findings of 94 percent in the right ear and 96 percent in the left ear. The results of the audiometric testing in the March 2018 VA examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 25 25 LEFT 15 15 15 20 20 Speech discrimination scores using the MD CNC word recognition list revealed findings of 100 percent in both ears. The results of the audiometric testing in the August 2021 VA examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 15 20 LEFT 15 20 20 20 15 Speech discrimination scores using the MD CNC word recognition list revealed findings of 100 percent in both ears. 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). Here, the VA hearing examination findings are not sufficient to establish a current hearing loss disability during the period on appeal for VA purposes. 38 C.F.R. § 3.385. During the period on appeal, the evidence of record demonstrated the Veteran was evaluated to have normal hearing in both ears by three different VA examiners. 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). Without competent evidence of a diagnosis of a hearing loss disability under 38 C.F.R. § 3.385, the Board must deny the Veteran's claim. The Board concludes that, as the evidence persuasively favors against service connection for hearing loss, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e., "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 3. Hypertension The Veteran's hypertension is currently rated under DC 7101, which provides for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control; a 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more; a 40 percent rating is warranted for diastolic pressure predominantly 120 or more 40; and a 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104. Note 1 to DC 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note 2 to DC 7101 provides that hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be evaluated as part of the condition causing it rather than by a separate evaluation. Note 3 to DC 7101 provides that hypertension is to be evaluated separately from hypertensive heart disease and other types of heart disease. The probative medical evidence of record, including the VA treatment records from January 2011 to November 2021 as well as the June 2011, March 2018 and September 2021 VA examinations, demonstrate that the Veteran's hypertension, was, at worst, productive of systolic pressure predominantly 160 mm/Hg or more, though not rising to the level of 200 mm/Hg or more, throughout the duration of the appeal. In the June 2011 VA examination, the Veteran's blood pressure was noted to be previously established by the readings of 195/91 mm/Hg, 192/102 mm/Hg and 175/106 mm/Hg. The Veteran's blood pressure reading on examination that day was 172/90, and the VA examiner found continuous medication was required for control of hypertension. In a March 2018 VA examination, the Veteran's blood pressure was recorded at 124/75 mm/Hg, 148/89 mm/Hg and 134/77 mm/Hg. At that time, the VA examiner found continuous medication was required for control of hypertension. Subsequent blood pressure recordings of 144/76 mm/Hg, 175/92 mm/Hg and 170/90 mm/Hg were noted in June 2021 VA outpatient treatment records. In the September 2021 VA examination, the Veteran's blood pressure was recorded at 180/90 mm/Hg, 179/94 mm/Hg and 175/93 mm/Hg and the VA examiner found continuous medication was required for control of hypertension. Accordingly, the Veteran's hypertension more nearly approximates the 10 percent disability rating currently assigned under DC 7101. See 38 C.F.R. § 4.104, DC 7101. The Board has considered the assignment of a higher disability rating under DC 7101; however, at no point during the period of the appeal has the Veteran's disability been productive of diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, so as to warrant a higher 20 percent disability rating under this rating criteria. Accordingly, the Board concludes that the Veteran's hypertension does not warrant an initial disability rating in excess of 10 percent throughout the duration of the appeal. 38 C.F.R. §§ 4.3, 4.7, 4.104; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). REASONS FOR REMAND 1. Service Connection for Glaucoma, Right Eye Blindness, Left Hand Disability, and a Bilateral Knee Disability Although multiple opinions were obtained in August 2021, September 2021 and December 2021, the Board observes that the VA examiners failed to address specific remand instructions from the May 2021 Board remand. In regard to the claim for service connection for hypertension, the Board instructed a VA examiner to discuss the diagnoses of hypertension with retinopathy and ocular hypertension in VA outpatient treatment reports from August 2013 and March 2016 in providing an opinion as to whether his glaucoma and right eye blindness were caused or aggravated by his service-connected hypertension. Following the May 2021 Board remand, no VA examiner addressed these specific pieces of evidence in their rationales. Furthermore, in providing medical opinions regarding the etiology of the left hand disability, the VA examiners in the September 2021 and December 2021 VA opinions failed to discuss specific evidence referenced in the May 2021 Board remand, including: the Veteran's report of sustaining an overuse injury and nerve damage to the left hand in service and the diagnosis of left ulnar and median neuropathy. Additionally, the opinions finding it was less likely than not that the left hand disability was incurred in or caused by active service were based upon the absence of a continuity of treatment for the left hand since active service. Likewise, in regard to VA opinions on the etiology of the bilateral knee disability, the VA examiners in the September 2021 and December 2021 VA opinions failed to address the Veteran's lay testimony regarding his falls due to his foot disabilities in service which he reported contributed to his knee problems. In addition, in finding that it was less likely than not that the bilateral knee disability was incurred in or caused by active service, the VA examiners based their opinions on an absence of a continuity of treatment for the bilateral knees since active service. For the reasons above, the August 2021, September 2021 and December 2021 VA opinions concerning glaucoma, right eye blindness, a left hand disability and a bilateral knee disability are inadequate, and the claims for service connection for glaucoma, right eye blindness, a left hand disability and bilateral knee disability must be remanded for adequate medical opinions, in line with the remand instructions below. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). 2. TDIU In this case, although the Veteran meets preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) from February 10, 2021, he does not meet the criteria prior to this time and, in light of the Board's remand for VA examinations, the results may affect the outcome of the issue of entitlement to TDIU for the entire appeal period. Accordingly, the Board will defer a decision pending further consideration by the Agency of Original Jurisdiction (AOJ). See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies. 2. Obtain an addendum opinion from an appropriate clinician to determine the current nature and etiology of glaucoma and right eye blindness. The examination report is to contain a notation that the examiner reviewed the claims file. PLEASE REVIEW AND ADDRESS: the Veteran's reported history carefully, including the VA medical records demonstrating diagnoses of hypertension with retinopathy in August 2013 as well as ocular hypertension in March 2016. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed glaucoma and right eye blindness are PROXIMATELY DUE TO OR AGGRAVATED by a service-connected disability, to include hypertension, diseases related to hypertension, such as ocular hypertension or hypertension with retinopathy, OR the medications for service-connected disabilities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 3. Obtain an addendum opinion from an appropriate clinician to determine the current nature and etiology of the left hand disability. The examination report is to contain a notation that the examiner reviewed the claims file. PLEASE REVIEW AND ADDRESS: (1) the Veteran's reported history carefully, including, his lay statement of an overuse injury to the left hand in service and a continuity of symptoms since that time; AND (2) VA outpatient treatment reports reflecting a diagnosis of left ulnar neuropathy. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed left hand disability had its onset during the Veteran's period of active service, to include a discussion of his competent report of symptoms in service and since that time. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 4. Obtain an addendum opinion from an appropriate clinician to determine the current nature and etiology of his bilateral knee disability. The examination report is to contain a notation that the examiner reviewed the claims file. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment, including reporting incidents in service and continual symptoms. The examiner is asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed bilateral knee disability: (1) had its onset during the Veteran's period of active service; or (2) was caused by any incident or event that occurred during such period, including his competent report of falls due to his foot problems; OR (3) is PROXIMATELY DUE TO OR WAS AGGRAVATED by a service-connected disability, to include the falls from his current foot disabilities, OR the medications for service-connected disabilities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 5. Following the above VA examinations, and after any additional development that may be indicated, adjudicate the issue of entitlement to TDIU. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.