Citation Nr: 24001663 Decision Date: 01/10/24 Archive Date: 01/10/24 DOCKET NO. 18-37 345 DATE: January 10, 2024 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a disability manifested by loss of sense of smell, to include as secondary to a respiratory condition, and to include as due to asbestos or other hazardous environmental exposure, is remanded. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2022). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1993 to December 1996 and from January 1998 to July 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2020, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. The Veteran opted for a second hearing and testified before the undersigned VLJ in May 2023. In May 2020, the Board remanded the Veteran's claims for additional development. The Board directed the Agency of Original Jurisdiction (AOJ) to attempt to obtain private treatment reports and to afford the Veteran a VA audiological examination. In correspondence dated in June 2020, the RO requested that the Veteran submit medical releases for any additional private treatment reports. The Veteran was also afforded a VA audiological examination, and medical opinions were obtained from the VA examiner. The Board finds that there has been substantial compliance with the Board's May 2020 remand directives and the Board will proceed with adjudication of the service connection claim for bilateral hearing loss on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board also remanded the issues of entitlement to service connection for a respiratory disorder, hypertension, and obstructive sleep apnea (OSA). In a July 2021 rating decision, the RO granted service connection for a respiratory disorder and hypertension. In a September 2021 rating decision, the RO granted service connection for OSA. These decisions constitute a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, these matters are no longer in appellate status. Of note, additional medical evidence was associated with the claims file subsequent to a January 2022 supplemental statement of the case (SSOC). However, the evidence is unrelated to the issue decided herein. Service Connection - Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss related to in-service acoustic trauma. A review of the Veteran's service treatment reports (STRs) do not reveal any complaints, findings, or treatment for hearing loss. At the December 1992 entrance examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 0 0 LEFT 10 0 0 0 0 At the October 1996 separation examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 -10 -5 -5 LEFT 5 5 0 0 0 At a May 1998 examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 -5 5 5 LEFT 5 5 -5 -5 0 At the December 1998 separation examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 -5 -10 -5 0 LEFT 15 5 -10 -10 0 At a VA audiological examination in May 2000, the Veteran's pure tone thresholds were 0 decibels at 500, 1000, 2000, 3000, and 4000 Hertz and as such, the Veteran did not meet the VA criteria for hearing loss. At a private examination in January 2002, B. Reisman, M.D., indicated that an audiogram revealed no evidence of hearing loss. VA outpatient treatment reports dated in August 2011 reveal that the Veteran was positive for hearing loss. There is no objective evidence to support this notation and it appears to be based on subjective complaints from the Veteran. Associated with the claims file is a January 2020 statement from F. Graf, M.D., an orthopedic surgeon. Dr. Graf indicated that the Veteran's claimed hearing loss was considered to be related to service. He stated that the Veteran was exposed to loud engine noise when he was in service and on one event was right next to Air Force 2 which was taking off and this event was followed by hearing loss. At a VA examination in August 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 25 LEFT 10 20 10 10 20 Speech audiometry revealed speech recognition ability of 96 percent in the right and left ears. The examiner indicated that an opinion was not proffered because the Veteran's right and left ear hearing was within normal limits. In December 2020, a VA examiner provided an addendum opinion and noted that while Dr. Graf opined that the Veteran's hearing loss was related to service, there was no objective hearing test to confirm a hearing loss disability. The examiner noted that all audiograms performed during service indicate normal hearing in both ears. The examiner reported that the Veteran currently has normal hearing in each ear based on audiological testing performed in August 2020. The examiner noted that while the VA outpatient treatment reports dated in August 2011 and the statement from Dr. Graf denote hearing loss, they do not appear to be based on any objective hearing tests. The Veterans submitted a September 2023 private medical opinion from Dr. R. Townsend who opined that the Veteran's hearing loss was as likely as not related to service. He indicated that the Veteran was exposed to acoustic trauma during service from noise on the flight line, firing range, engines, high pressure hoses, hydraulics, and power tools. He noted that a May 2000 VA audiological examination did not find that the Veteran met the criteria for hearing loss. The above-cited testing results do not establish a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. The Board has reviewed the claims file; however, the Veteran has not presented or identified existing audiometric testing results that meet the requirements of that regulation for hearing loss. Although two private examiners indicated that the Veteran's hearing loss was related to his in-service noise exposure, audiometric testing performed during the pendency of the appeal does not establish that the Veteran's hearing thresholds meet the criteria for a hearing loss disability in either ear. Hence, the Veteran does not have a bilateral hearing loss disability for VA purposes. The test results are controlling and more probative than the lay evidence, private medical opinions, and subjective complaints of hearing loss. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the remaining claim can be reached. The Veteran's claim was previously remanded for an etiology opinion on the issue of claim for a disability manifested by loss of sense of smell. At a VA examination in July 2021, the Veteran was diagnosed with hyposmia (reduced ability to detect any odors) and hypogeusia (decrease in sense of taste). The examiner provided a negative nexus for direct service connection and service connection as secondary to a service-connected respiratory condition and provided adequate rationale. However, the Veteran's representative, in a June 2023 statement, requested the July 2021 VA clinician's curriculum vitae (CV) so that she could make a detailed objection to the VA examiner's opinion. Once the request is made for information as to the competency of the examiner, the Veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). Accordingly, on remand VA must respond to the request for the credentials of the Veteran's VA examiner, to the extent possible and as allowed by law. See Francway, 940 F.3d at 1308. The Veteran reported that his loss of sense of smell resulted from exposure to environmental toxins to which he was exposed in service, including during his service at Marine Corps Air Station (MCAS) El Toro, California, a location which was listed on the Environmental Protection Agency's National Priorities List of Superfund sites. Consequently, the Board finds that a remand is necessary to satisfy regulatory or statutory duties. 38 C.F.R. § 20.802(a). The evidence indicates that the Veteran participated in a toxic exposure risk activity (TERA) and reports experiencing loss of sense of smell. The law requires VA to provide a medical opinion when the Veteran submits a claim for compensation, has evidence of a disability, had evidence of participation in a TERA, and such evidence is not sufficient to establish service connection for the disability. 38 U.S.C. § 1168(a). Furthermore, the VA examiner must consider: 1) the total potential exposure through all applicable military deployments; and 2) the synergistic, combined effect of all toxic exposure risk activities of the veteran. Id. Therefore, the Board finds that the claim must be remanded for a VA medical opinion addressing the nature and etiology of the Veteran's complaints of loss of smell in the context of his participation in a TERA as required by the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). The matter is REMANDED for the following action: 1. Provide the Veteran and his attorney with a CV or other information regarding the qualifications for the VA examiner who conducted the July 2021 VA loss of smell examination. If the information requested is not available, then the AOJ should advise the Veteran and his attorney and note the reasons for such in the record. 2. Then, submit the claims file to an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed loss of sense of smell. The claims file must be made available to and reviewed by the examiner. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently present disability manifested by loss of smell is etiologically related to active service, to include participation in a TERA. In providing this opinion, the VA examiner must consider and discuss: 1) the total potential exposure through all applicable military deployments; and 2) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. If the examiner determines that an examination is necessary in order to provide the requested opinion, an examination should be scheduled. A rationale for all opinions expressed must be provided. David H. Robertson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.