HEARING LOSS

S.C. KREMBS · 2022 · Case ID: 22056333

DENIED

Summary

The veteran, who served in the United States Navy from April 2006 to April 2012, appeals the denial of service connection for bilateral hearing loss and hypertension. The Board reviewed a VA audiological examination from April 2016, which found normal hearing in both ears, although the left ear's speech discrimination score met the VA's criteria for impaired hearing. The examiner provided a negative nexus opinion, stating the hearing loss was not related to service or in-service events. The Board noted the examiner's opinion was inadequate because it was based on the inaccurate premise that the left ear did not qualify as impaired. The case was remanded for a new VA examination, but the veteran failed to appear for the rescheduled April 2022 examination without good cause. Without a competent nexus opinion linking the current left ear hearing loss to service, the Board denied service connection. For hypertension, the Board found the veteran currently has the condition but did not have it manifest during service or within one year of separation to a compensable degree. The Board reviewed numerous blood pressure readings from service, finding them predominantly normal and not meeting the criteria for hypertension. The Board also addressed the veteran's contentions that hypertension was related to engine room stress and untreated sleep apnea, but found the veteran lacked the medical expertise to provide a competent opinion on etiology. The case was remanded for a VA examination on hypertension's service connection and secondary relationship to sleep apnea, but the veteran again failed to appear for the examination without good cause. The Board denied service connection for hypertension due to lack of competent nexus evidence and failure to meet presumptive criteria. In both denials, the Board found the evidence weighed against service connection, making the benefit of the doubt doctrine inapplicable.

Rationale

Current disability established for left ear hearing loss.; In-service acoustic trauma acknowledged.; Initial VA nexus opinion inadequate.; Veteran failed to attend rescheduled VA examination.; No competent nexus opinion linking current hearing loss to service.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-54 107

Full Decision Text

Citation Nr: 22056333
Decision Date: 10/05/22 Archive Date: 10/05/22

DOCKET NO. 17-54 107
DATE: October 5, 2022

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for hypertension is denied.

FINDINGS OF FACT

1. The evidence of record demonstrates that the Veteran has hearing impairment of the left ear to the extent recognized as a disability for Department of Veterans Affairs (VA) purposes. A preponderance of the evidence indicates that the Veteran's left ear hearing loss did not have its onset during active service, did not manifest to at least a compensable degree within one year from the date of separation from active service, and is not otherwise related to an in-service injury, disease, or event.

2. The Veteran currently has hypertension. However, a preponderance of the evidence indicates that his hypertension did not have its clinical onset during his active service, did not manifest to at least a compensable degree within one year from the date of separation from active service, and is not otherwise related to an in-service injury, disease, or event. Further, a preponderance of the evidence does not demonstrate that the Veteran's hypertension was caused or aggravated by obstructive sleep apnea.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from April 2006 to April 2012.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a VA Regional Office (RO).

In October 2021, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record.

In March 2022, the Board remanded the Veteran's case for further development. The case has returned to the Board for appellate review.

Service Connection

As a general matter, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

Additionally, service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a).

Further, hypertension and sensorineural hearing loss are classified as "chronic diseases" eligible for presumptive service connection under 38 C.F.R. § 3.309(a). The Board may consider presumptive service connection for "chronic diseases" on three bases: (1) chronicity during service, (2) continuity of symptomatology since service, and (3) manifestations to a degree of 10 percent disabling or more within one year of the Veteran's separation from service. 38 C.F.R. §§ 3.303(b), 3.307(a)(3); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

For VA purposes, hypertension is defined as diastolic blood pressure predominantly at 90 millimeters (mm) or greater. See 38 C.F.R. § 4.104, Diagnostic Code 7101. A 10 percent rating for hypertension under Diagnostic Code 7101 is assigned when: (1) diastolic pressure is predominantly 100 or more; or (2) systolic pressure is predominantly 160 or more; or (3) if there is a history of diastolic pressure predominantly 100 or more with continuous medication for required control.

Regarding hearing loss, VA defines impaired hearing as when the auditory threshold in any of the
1331, 1338 (Fed. Cir. 2013).

Regarding hearing loss, VA defines impaired hearing as when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC word list are less than 94 percent. See 38 C.F.R. § 3.385.

1. Service Connection for Bilateral Hearing Loss

As indicated above in the Conclusions of Law section, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted in the instant case. Thus, the Veteran's claim is denied.

In support of this determination, the Board notes that the Veteran was provided one VA audiological examination during the pendency of his claim. Specifically, in April 2016, puretone thresholds of 15 decibels were measured at 500 Hertz through 4000 Hertz. Comparatively, for the left ear, the following puretone thresholds were measured: 15 decibels at 500, 1000, 3000, and 4000 Hertz; and 10 decibels at 3000 Hertz. The Veteran's speech discrimination scores using the Maryland CNC word list were 96 percent for the right ear and 92 percent for the left ear.

Following completion of audiometric testing, the April 2016 examiner diagnosed the Veteran with normal hearing for both ears. She then provided a negative nexus opinion for each ear based upon a lack of impaired hearing found during both the current examination and in the Veteran's service treatment records (STRs).

The Board notes that while April 2016 VA examiner concluded that the Veteran had normal hearing of the left ear, the Veteran's left ear speech discrimination score qualified as impaired hearing for VA purposes as it was below 94 percent. See 38 C.F.R. § 3.385. Comparatively, for the right ear, there were no such qualifying measurements during the claim period. Accordingly, the Board finds that the first service connection requirement of a current disability has been satisfied for the left ear only. See 38 C.F.R. §§ 3.303, 3.385.

Moving to the next requirement of an in-service incurrence, the Board notes that VA has already acknowledged that the Veteran experienced acoustic trauma in service. See April 2016 Rating Decision. The Board does not disturb this finding and, thusly, concludes that the second service connection requirement of an in-service injury, disease, or event has been satisfied for the left hear. See 38 C.F.R. § 3.303.

Turning to the last requirement of nexus, the Board notes that the April 2016 VA examiner's opinion was inadequate for adjudicative purposes as it was based upon the inaccurate premise that the Veteran's left ear speech discrimination score did qualify as impaired hearing under 38 C.F.R. § 3.385.

Due to the provision of an inadequate opinion in April 2016, the Board remanded the issue of service connection for hearing loss in March 2022 and directed the Agency of Original Jurisdiction (AOJ) to provide the Veteran with an additional VA audiological examination and medical opinion. Following the Board's remand, a VA examination contractor contacted the Veteran to schedule and remind him of a new examination on April 4, 2022, April 5, 2022, April 6, 2022, April 7, 2022, and April 18, 2022.

Documentation in the Veteran's claims file indicates that this new examination was scheduled on April 21, 2022, and the Veteran did not appear. Generally, when a veteran, without good cause, fails to appear for a VA examination scheduled in connected with an original compensation claim, the claim is to be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). The Veteran has not provided good cause for his lack of attendance at the April 21, 2022, examinationeven after he was notified by letter
, April 5, 2022, April 6, 2022, April 7, 2022, and April 18, 2022.

Documentation in the Veteran's claims file indicates that this new examination was scheduled on April 21, 2022, and the Veteran did not appear. Generally, when a veteran, without good cause, fails to appear for a VA examination scheduled in connected with an original compensation claim, the claim is to be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). The Veteran has not provided good cause for his lack of attendance at the April 21, 2022, examinationeven after he was notified by letter in June 2022 and provided an opportunity to respond.

Separate from the April 2016 VA examination and the Veteran's lack of attendance at the April 2022 examination without good cause, a review of the claims file reveals no evidence by a medical professional linking the Veteran's current left ear hearing loss to service. As there are no competent nexus opinions of record regarding whether the Veteran's current left ear hearing loss is related to service or arose within one year following the Veteran's separation from service, the Board finds that entitlement to service connection is not warranted. Thus, the Veteran's claim is denied. 38 C.F.R. § 3.303.

In denying service connection, the Board concludes that the evidence in this case is neither evenly nor approximately balanced. Rather, it persuasively weighs against service connection. The benefit of the doubt doctrine (U.S.C. § 5107(b)) is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

2. Service Connection for Hypertension

Similar to the issue of hearing loss, the Board finds that service connection for hypertension is not warranted in the instant case. Accordingly, the Board denies the Veteran's claim.

In support of this determination, the Board first notes that the Veteran currently has hypertension. See, e.g., January 2021 VA Primary Care E&M Note. Thus, the first service connection requirement of a current disability has been satisfied. See 38 C.F.R. § 3.303.

Moving to the next service requirement of an in-service incurrence, the Board finds that the Veteran did not have, develop, complain of, or receive treatment for hypertension in service. A review of the Veteran's STRs reveals no complaints of or treatment for this condition in service. Additionally, the following blood pressure measurements were recorded in service: 130/83 in May 2006; 131/72 in September 2006; 128/73 in April 2007; 129/59 in February 2008; 142/74 in July 2008; 120/75 in October 2008; 137/75 in December 2008; 136/71 in January 2009; 135/74 in July 2009; 136/76 in December 2009; 134/71 in January 2010; 136/84 in February 2010; 126/84 and 120/84 in March 2010; 137/85 in February 2011; 120/84 and 129/88 in March 2011; 138/93 in May 2011; 114/73 in July 2011; and 120/73 in October 2011. While the Veteran's diastolic blood pressure measured 93 mm in May 2011, it routinely measured below 90 mm consistently during service such that the Board may not conclude that the Veteran's diastolic pressure was predominantly 90 mm or more, as required by 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1); Gill v. Shinseki, 26 Vet. App. 386, 390 (2013). Thus, when viewed in the context of the Veteran's complete STRs, the May 2011 reading is isolated, and the Board concludes that the Veteran did not have high blood pressure to the extent recognized as a disability for VA purposes during service. See 38 C.F.R. § 3.303.

Relatedly, the Board also finds that the Veteran's hypertension did not manifest to a degree of 10 percent or more within one year of the separation from service. In so finding, the Board notes that a 10 percent rating under Diagnostic Code 7101 is: (1) diastolic pressure predominantly 100 mm or more; or (2) systolic pressure predominantly 160 mm or more; or (3) a history of diastolic pressure predominantly 100 mm or more with continuous medication for required control. 38 C.F.R. § 4.104. The record currently does not contain evidence supporting one of the above findings between April 2012 and April 2013i.e., the one-year period following the Veteran's separation from active duty service. While the Veteran was initially diagnosed with hypertension by a VA provider in October 2013about 6 months after April 2016his systolic pressure on that occasion was measured at 142 mm with his diastolic pressure measured at 96 mm. At that time, the Veteran was not on any medication to control his blood pressure. Accordingly, the information recorded in the October 2013 VA treatment record does not support a finding that the Veteran had hypertension manifesting to a compensable degree as defined by Diagnostic Coe 7101 within one year of discharge. See 38 C.F.R. § 4.104.

Similarly, though a VA medical professional measured the Veteran's blood pressure as 143/91 in October 2012i.e., within the one-year post-service periodthe Veteran was not diagnosed with hypertension at that time. Further, like the information contained in the October 2013 VA treatment record, the October 2012 record does not contain evidence that (1) the Veteran's diastolic pressure measured predominantly 100 mm or more; or (2) his systolic pressure measured predominantly 160 mm or more; or (3) he had a history of diastolic pressure measuring predominantly 100 mm or more with continuous medication for required control. See 38 C.F.R. § 4.104. Thus, the Board finds that service connection for hypertension as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309 is also not warranted.

Lastly, the Board acknowledges that, during his October 2021 Board hearing, the Veteran testified that his current hypertension may have been related to the stress he experienced working in the engine room of a naval ship. See Hearing Tr. at 4-5. Further, he testified that his hypertension may have been caused or aggravated by his untreated obstructive sleep apnea. Id at 7.

While the Veteran may express these contentions, providing the etiology of a condition like hypertension involves an assessment of symptoms and the application of professional judgement outside the realm of knowledge of a layperson using his or her senses. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). A review of the claims file indicates that the Veteran does not possess the medical knowledge, experience, and training to provide a competent opinion regarding the etiology of his hypertension.

Further, in March 2022, the Board remanded the issue of service connection for hypertension for the AOJ to provide a VA examination and medical opinion to address whether the Veteran's hypertension was related to service or was secondary to his obstructive sleep apnea. Similar to the issue of hearing loss, the Veteran was scheduled for a VA hypertension examination in April 2022, but did not appear. In June 2022, VA acknowledged that the Veteran did not appear for a scheduled examination and requested that he provide good cause for his lack of appearance so that the examination could be rescheduled. The Veteran did not reply.

As stated previously, when a veteran, without good cause, fails to appear for a VA examination scheduled in connected with an original compensation claim, the claim is to be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). Accordingly, the Board concludes that record currently does not contain a competent, adequate opinion by a medical professional (1) linking the Veteran's
Veteran was scheduled for a VA hypertension examination in April 2022, but did not appear. In June 2022, VA acknowledged that the Veteran did not appear for a scheduled examination and requested that he provide good cause for his lack of appearance so that the examination could be rescheduled. The Veteran did not reply.

As stated previously, when a veteran, without good cause, fails to appear for a VA examination scheduled in connected with an original compensation claim, the claim is to be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). Accordingly, the Board concludes that record currently does not contain a competent, adequate opinion by a medical professional (1) linking the Veteran's hypertension to service directly; or (2) finding that the Veteran's hypertension was caused or aggravated by his service-connected obstructive sleep apnea. Therefore, service connection on both direct and secondary bases must be denied. See 38 C.F.R. §§ 3.303, 3.310.

Like for hearing loss, in denying service connection for hypertension, the Board concludes that the evidence in this case is neither evenly nor approximately balanced. Rather, it persuasively weighs against service connection. The benefit of the doubt doctrine (U.S.C. § 5107(b)) is therefore not for application. Lynch, supra.

S.C. KREMBS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board N.S. Pettine, 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.

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