Citation Nr: 0810827 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-35 832A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial compensable rating for service- connected bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran served on active duty from January 1980 to January 1983 and February 2003 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The veteran testified before the undersigned Veterans Law Judge in August 2007. The issue of a compensable evaluation for service-connected bilateral hearing loss is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue herein decided has been accomplished. 2. There is no medical evidence that the veteran had hypertension during his first period of service. 3. Clear and unmistakable evidence establishes that the veteran's hypertension preexisted his second period of service. 4. Clear and unmistakable evidence to include a competent medical opinion establishes that the veteran's hypertension was not aggravated by his second period of military service. CONCLUSION OF LAW The veteran's hypertension is not due to disease or injury that was incurred in or aggravated by active service, nor may it be presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2005). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. In May 2004, prior to the rating decision on appeal, the RO sent the veteran a letter informing him that to establish entitlement to service-connected compensation benefits the evidence must show credible supporting evidence of a disease or injury that began in or was made worse during service, or that there was an event in service which caused injury or disease; a current physical or mental disability; and a relationship between the current disability and an injury, disease or event in service. The veteran was afforded time to respond before the RO issued the November 2004 rating decision on appeal. The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claim and has been afforded ample opportunity to submit such information and evidence. The May 2004 letter also satisfies the statutory and regulatory requirement that VA notify a claimant, what evidence, if any, will be obtained by the claimant and what if any evidence will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The May 2004 letter advised the veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letters also advised the veteran that VA must make reasonable efforts to help the veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. The letter advised the veteran that it was his responsibility to provide the RO with enough information about the records to enable the RO to request them from the person or agency having them, and advised the veteran that it was his responsibility to make sure the records were received by VA. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained hereinabove, the first three content-of-notice requirements have been met in this appeal. As for the fourth content-of-notice requirement, the May 2004 letter expressly advised the veteran to send the VA any evidence in his possession that was pertinent to his claim. During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this appeal, the first Dingess element (veteran status) is not at issue, and as noted above the May 2004 letter advised the veteran of the second and third Dingess elements (existence of a disability and connection between the veteran's service and that disability). In regard to fourth and fifth Dingess elements (degree of disability, and effective date pertaining to the disability), the RO advised the veteran of these elements in a February 2007 letter. The Board's decision below denies service connection for the claimed disability, so no degree of disability or effective date will be assigned. There is accordingly no possibility of prejudice to the veteran by the failure to provide this information prior to the initial adjudication of his claim. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's existing service medical records and post- service VA medical records have been associated with the claims file. Neither the veteran nor his representative has identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having existing records that should be obtained before the claims are adjudicated. The veteran had a VA examination in August 2006. The veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2007. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim for service connection for hypertension. II. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). If cardio-vascular renal disease, including hypertension becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of hypertension during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). The Board notes that with respect to the veteran's Army Reserve service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing Active Duty for Reserve Training (ACDUTRA) or injury incurred or aggravated while performing Inactive Duty for Reserve Training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24) (West 2002); 38 C.F.R. § 3.6 (2007). The Board notes that 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. 38 C.F.R. § 4.104, Code 7101, Note 1. The Board notes most of the veteran's service medical records from his first period of active duty, January 1980 to January 1983, to include the entrance and exit examinations, are not part of the veteran's claims file. The Board notes that the case law does not establish a higher benefit-of-the-doubt standard, but rather heightens the duty of the Board to consider the benefit-of-the-doubt rule, to assist the claimant in developing his claim, and to explain its decision when the service medical records have been destroyed. Ussery v. Brown, 8 Vet. App. 64 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The earliest physical examination in the veteran's service medical records is from his Reserve duty in September 1985, which revealed the veteran's blood pressure was 120/70. Additional service medical records from the Reserves note that on an October 1989 examination there was no mention of high blood pressure and in February 1994 the veteran stated that he was not on any medication. In November 1999 the veteran noted he had high blood pressure and in January 2000 the veteran's blood pressure was noted to be mildly high at 144/88. In February 2002 it was noted the veteran had a history of hypertension that was controlled with medication and in October 2002 the veteran's blood pressure was noted to be 139/80. In March 2004 it was noted the veteran was on Lotrel for the past 2 1/2 to 3 years and his readings in March 2004 were 140/84 and 116/70. His readings in April 2004 were 142/92 ad 115/86. At the August 2006 VA examination the examiner stated that the veteran was diagnosed with hypertension at least since February 1994. It was noted that in February 2003 the veteran had elevated blood pressure readings when he was evaluated for left elbow pain. In July 2003 the veteran had normal blood pressure readings; however, in April 2004 he had elevated blood pressure readings when he was on a visit for hip pain. The examiner stated that after review of the claims file there was no evidence that the veteran's blood pressure was aggravated or worsened during his active duty from February 2003 to May 2004. He further opined that there was no evidence of permanent worsening of the veteran's hypertension based on the blood pressure readings noted. He stated that there was some elevated readings noted but most of these were in connection with clinic visits for various joint complaints. There was no evidence of any end organ damage caused by his hypertension as manifested by a normal electrocardiogram, chest X-ray study, and renal function test. There was also no evidence of support in the claims file that the veteran's hypertension was permanently worsened over his normal baseline. The Board finds that there is no medical evidence in either the veteran's service medical records or post-service medical records that the veteran's hypertension was either incurred in or diagnosed during his first period of active service. The limited records that are available do not show a diagnosis of hypertension. The September 1985 examination, which is the earliest post service examination of record, was negative for a diagnosis of hypertension and contained a blood pressure reading that was within the range of normal. The earliest evidence of hypertension is dated many years after discharge from the first period of service, and there is no competent medical opinion that relates the current hypertension to this period of service. Therefore, the Board concludes that hypertension was not incurred due to the veteran's first period of active service, nor may it be presumed to have been incurred during that period of service. At this juncture, the Board notes that the veteran's contentions appear to indicate that he argues his hypertension developed not during his initial period of service, but rather during his reserve service and his second period of active duty. These contentions will now be addressed. In regards to the diagnosis of hypertension prior to his second period of active service the Board notes that 38 U.S.C.A. § 1111 provides that a veteran is presumed sound upon entrance into active duty except as to conditions noted at the time of the acceptance, examination, or enrollment. In this case, there is no record of an examination conducted at the time of the veteran's entrance into his second period of active duty. An October 2002 examination conducted for the reserves just four months prior to his return to active duty did not note a diagnosis or history of hypertension. Therefore, the Board finds that the veteran is entitled to the presumption of soundness for his second period of active service. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence that (1) the condition existed prior to service, and (2) the condition was not aggravated by service. The claimant is not required to show that the condition increased in severity in service before VA's duty under the second prong of the rebuttal standard attaches; since 38 C.F.R. § 3.304(b) conflicts with 38 U.S.C.A. § 1111, the C.F.R. section is invalid and should not be followed. VAOPGCPREC 003-03 (July 16, 2003). The Board finds that the evidence does clearly and unmistakably refute the presumption of soundness. Reserve examinations conducted in November 1999 and February 2002 state that the veteran had hypertension that was controlled by medication. An October 2002 Report of Medical History obtained at the time of the October 2002 examination also notes a history of hypertension. This is clear and unmistakable evidence that the veteran had hypertension prior to entering his second period of active service. The Board further finds that clear and unmistakable evidence establishes that the veteran's preexisting hypertension was not aggravated during his second period of active service. The August 2006 VA examiner did not merely opine that the veteran's hypertension was not aggravated during his second period of active duty. The examiner emphatically stated that there was "no" indication that the veteran's blood pressure was aggravated or worsened during this period, "no evidence of permanent worsening of his hypertension based on the blood pressure readings noted", "no evidence of any end organ damage", and finally "no evidence to support, by C. file review and CPRS review, that his hypertension was permanently worsened over his normal baseline". The examiner did not state that it was merely probable that the veteran's hypertension was not aggravated, he unequivocally ruled out the possibility of aggravation. There is no other competent medical evidence in the claims folder to the contrary. The Board finds that this establishes by clear and unmistakable evidence that the veteran's hypertension was not aggravated by his second period of service. The Board notes the veteran's sincere belief that his hypertension was either incurred or aggravated by his second period of service. A layperson is competent to testify in regard to the onset and continuity of symptomatology, including pain. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). The only competent medical opinion is that of the August 2006 examiner, and this opinion completely rules out the possibility of aggravation. Finally, the Board notes the veteran's statements indicating his hypertension began during his many years of service in the reserves. However, the veteran's reserve service is considered to be INACDUTRA. Service connection may be established for disabilities due to injuries sustained on INACDUTRA, but not for disease. Hypertension is considered to be a disease. The veteran has not reported any periods of ACDUTRA during this time frame, and there is no evidence that hypertension developed or was first noted during ACDUTRA. See 38 U.S.C.A. § 101(22), (24) (West 2002); 38 C.F.R. § 3.6 (2007). Given these facts, the Board finds that service connection for hypertension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for hypertension is denied. REMAND The veteran testified before the Board that his bilateral hearing loss has become worse since his last VA audiological evaluation in August 2006. When a veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the RO should arrange for the veteran to undergo a VA audiological evaluation in order to determine the current severity of his bilateral hearing loss. The veteran is hereby advised that failure to report to the scheduled examination may result in denial of the claim. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the veteran and death of an immediate family member. If the veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility at which the examination is to take place. To ensure that all due process requirements are met, the RO should also give the veteran an opportunity to present additional information and/or evidence pertinent to the claim on appeal that is not already of record. The RO's notice letter should explain that the veteran has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with VCAA and its implementing regulations. Hence, in addition to the actions requested hereinabove, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claim on appeal. Accordingly, the issue is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran by letter and request that the veteran provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records for bilateral hearing loss. The veteran also should be informed that he may submit evidence to support his claim. 2. Based on the veteran's response, the RO should assist him in obtaining any additional evidence identified by him, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken. 3. The RO should arrange for the veteran to be given an audiological evaluation at an appropriate VA facility. The entire claims file must be made available to the audiologist designated to examine the veteran, and the examination reports should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should prepare a report of examination that details the current severity of the veteran's service- connected bilateral hearing loss stated in terms conforming to the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 4. After completing the required actions, and any additional notification and/or development deemed warranted, RO should adjudicate the veteran's claim in light of all the evidence of record. If any benefit sought on appeal is not granted, the RO should furnish to the veteran and his representative an appropriate Supplemental Statement of the Case (SSOC) that includes citation to and discussion of all additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them a reasonable opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 41 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs