Citation Nr: 0812554 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-32 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from October 1970 to February 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The issue of entitlement to a total disability rating based on individual unemployability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran does not currently have hearing loss with the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz being 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz being 26 decibels or greater; or speech recognition scores using the Maryland CNC Test being less than 94 percent. 2. Tinnitus was not present during service and the currently claimed tinnitus did not develop as a result of any incident during service, to include exposure to noise. 3. The veteran's hypertension is not manifested by diastolic pressure which is predominately 110 or more, or systolic pressure which is predominantly 200 or more. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 3. The criteria for a disability rating higher than 10 percent for hypertension are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter: Duties to Notify and Assist Initially, the Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in September 2003, September 2005, March 2006, December 2006 and May 2007 provided the veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. In addition, the letters informed the veteran that he should submit any additional evidence that he had in his possession. The Board also finds that the letters and other correspondence adequately explained to the veteran the evidence which would warranted a higher rating for hypertension, as is required by the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). The letter dated in September 2003 requested that he submit evidence showing that his hypertension had increased in severity such as treatment records pertinent to the claimed condition. He was also advised that he could submit statements from other individuals who were able to describe from their knowledge and personal observations how his disability had become sores. The letter dated in March 2006 also indicated that the VA determined the disability rating by using a schedule for evaluating disabilities that is published as title 38 Code of Regulations, Part 4. It was noted that the VA considered the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the symptoms on employment. It was further noted that the veteran could submit information regarding treatment records, recent Social Security determinations, and statements from employers as to job performance, lost time, and other information regarding how the condition affected his ability to work. The Board further notes that the veteran was provided extensive information regarding the criteria contained in the applicable Diagnostic Code in the statement of the case which was issued in April 2004. He was subsequently afforded additional opportunity to submit evidence, but did not do so. Therefore, there was no prejudice as a result of the timing of the notification. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes, therefore, that the appeal may be adjudicated without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues on appeal. The veteran was afforded VA examinations. His service medical records and post service treatment records have been obtained. Records were also obtained from the Social Security Administration. The veteran was also afforded a personal hearing. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of evidence is required. I. Entitlement To Service Connection For Hearing Loss. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. Service connection may only be granted if claimed hearing loss is of sufficient severity to be considered a disability for VA purposes. Specifically, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 CNC Test are less than 94 percent. 38 C.F.R. § 3.385. During the hearing held before the undersigned Veterans Law Judge in March 2008, the veteran testified that he was exposed to noise from artillery during service in Vietnam. He further testified that he developed an inability to hear normally as a result of that noise exposure. He characterized his hearing loss as being severe. The Board finds that there is no adequate medical evidence to show that the veteran currently has a hearing loss disability. The Board has noted that a VA audiology record dated in June 2003 shows that the veteran was tested for treatment purposes. The test results suggest that the veteran met the criteria for a hearing loss disability under § 3.385; however, there is no mention of whether the hearing loss was related to noise exposure during service. Moreover, the Board notes that subsequent hearing loss tests cast doubt on the accuracy of the June 2003 results. The report of a VA audiological evaluation conducted in August 2005 reflects that the VA examiner concluded that test results were not reliable or valid, and were not adequate for rating purposes. The examiner noted that the puretone thresholds were not consistent with the speech reception thresholds. The examiner stated that the veteran's responses were considered to be elevated at the very least, and that there was evidence of a functional component. The examiner noted that the veteran exhibited no difficulty in communicating with the examination during one-on-one conversation. Similarly, the report of an audiology test conducted by the VA in October 2007 reflects that the examiner concluded that, despite repeated attempts and reinstruction, the test results were not reliable and were not suitable for rating purposes. The examiner stated that "The veteran did not appear to be putting forth a good faith effort to cooperate with the examiner." The examiner stated that the test results were strongly suggestive of a non-organic hearing loss. It was noted that responses to puretone varied by up to 15 decibels with retesting, which was more than would be expected from test/retest variability. The examiner also noted that the bone conduction thresholds were in poor agreement with the best air conduction thresholds which were obtained. The examiner concluded that due to poor reliability or responses, he was unable to render an opinion or determine whether the auditory or speech recognition scores meet the criteria for impaired hearing per VA standards. The veteran has submitted the report of a private audiology test conducted in February 2008; however, that test report does not reflect that it was conducted according to the specified VA requirements. 38 C.F.R. § 4.85. Accordingly, that test result may not be used to support the claim. Although the veteran has given his own opinion that he has a hearing loss disability, the Court has held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). For the purposes of 38 C.F.R. § 3.385, objective testing is required rather than the veteran's subjective opinion regarding the severity of the hearing loss. Accordingly, the Board concludes that a hearing loss disability was not incurred in or aggravated by service. II. Entitlement To Service Connection For Tinnitus. The service medical records do not contain any references to tinnitus. The first evidence of tinnitus is not until many years after separation from service. The Board has noted that a VA hypertension examination conducted in August 2005 reflects that an examiner opined that the veteran's tinnitus was as likely as not related to his in-service acoustic trauma. However, the examiner did not offer any basis for that opinion and did not even conduct a hearing loss examination. An unsupported opinion does not provide an adequate basis to support a service connection claim. Moreover, the opinion was apparently based on a history given by the veteran of having had tinnitus ever since being exposed to nose in service. That history has been contradicted by the lack of any evidence of complaints of that disorder until many years alter. Therefore, to the extent that the opinion is based on that history, it has reduced probative value. The report of a VA examination conducted in October 2007 shows that the veteran n stated that he began having tinnitus during service. However, the fact that the veteran's own account of the etiology of his disability was recorded in his medical records is not sufficient to support the claim. In LeShore v. Brown, 8 Vet.App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. The only credible and supported medical opinion regarding whether the veteran's current complaints of tinnitus could have resulted from noise exposure during service weighs against the claim. In this regard, the report of an audiology examination conducted by the VA in October 2007 shows that the examiner concluded that he could not determine whether the tinnitus was related to military service without resorting to mere speculation. Although the veteran has given his own opinion that his current tinnitus resulted from noise exposure during service, the Court has generally held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu. Therefore, the Board finds that tinnitus was not present during service and the currently claimed tinnitus did not develop as a result of any incident during service, to include exposure to noise. Accordingly, the Board concludes that tinnitus was not incurred in or aggravated by service. III. Entitlement To An Increased Rating For Hypertension, Currently Rated As 10 Percent Disabling. The veteran contends that the RO made a mistake by failing to assign a disability rating higher than 10 percent for his service-connected hypertension. He asserts that the has had readings which are high enough to meet the criteria for a 20 percent rating. During the hearing held in March 2008, the veteran testified that he had high blood pressure ever since coming out of service, and that he had to take three medications to control his blood pressure. He said that his blood pressure had been up to almost 200 over 90. He also said that he could become dizzy. He said that his blood pressure medications controlled it pretty well, but that it was still too high. The Board has considered the full history of the disorder. The veteran's service medical records show that he had high blood pressure reading of 150/80 in January 1972. The veteran filed his original claim for disability compensation in July 1972. The evidence which was obtained included a VA hospital summary dated in February 1972 which shows that the diagnoses included hypertension. In a decision of February 1973, the RO granted service connection for hypertension, and assigned a noncompensable disability rating. In June 2003, the veteran requested increased compensation. The RO subsequently assigned an increased 10 percent rating, but the veteran perfected the current appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Under 38 C.F.R. § 4.104, Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or 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 if the diastolic pressure is predominantly 110 or more; or the systolic pressure is predominantly 200 or more. A 40 percent rating is warranted if the diastolic pressure is predominantly 120 or more. A 60 percent rating is warranted if the diastolic pressure is predominantly 130 or more. Many VA treatment records contain blood pressure readings consistent with the current 10 percent rating. For example, in April 2002, the reading was 157/80. In November 2002, the veteran's blood pressure was 151/75. The Board has noted that the report of a hypertension examination conducted by the VA in September 2003 shows that the veteran's blood pressure readings were 200/100, 196/98, and 190/98. The Board notes that only one of those readings was consistent with a rating higher than 10 percent. A VA record dated in September 2004 shows a lower blood pressure reading of 151/77. The report of an examination conducted in December 2004 in connection with a claim for Social Security disability benefits reflects that the veteran's blood pressure was 130/80. On VA examination in August 2005, the veteran's blood pressure readings were 165/91, 170/91, and 168/90. After considering all the evidence, the Board finds that the veteran's hypertension has not been manifested by diastolic pressure predominately 110 or more or systolic readings of 200 or more as contemplated for a rating in excess of 10 percent. The readings consistent with the next higher rating have been extremely rare. The medical evidence shows that the readings have been almost always below that level. Accordingly, the Board concludes that the criteria for a disability rating higher than 10 percent for hypertension are not met. ORDER 1. Service connection for hearing loss is denied. 2. Service connection for tinnitus is denied. 3. An increased rating for hypertension, currently rated as 10 percent disabling, is denied. REMAND The Board finds that additional development of the evidence is required to analyze the veteran's claim for a TDIU benefit due to service-connected disabilities. The veteran's service-connected disabilities are post-traumatic stress disorder, rated as 70 percent disabling; type II diabetes mellitus, rated as 20 percent disabling; and hypertension, rated as 10 percent disabling. His combined disability rating is 80 percent. The evidence of record contains the results of VA disability evaluations examinations conducted previously; however, those examination reports contain little information regarding the combined effect of the disabilities on the veteran's ability to maintain gainful employment. Given the foregoing, the veteran should be scheduled for an appropriate VA examination for the purpose of determining the impact that the veteran's service-connected disabilities has on his ability to engage in a substantial gainful occupation. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA examination to determine the current level of severity of the service connected PTSD, diabetes mellitus and hypertension. Provide the veteran with adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on the claim. The veteran's claims folder must be made available to and reviewed by the examining physician. Following the examination, the examiner should address the following: a) Describe all symptoms caused by the service-connected PTSD, diabetes mellitus, and hypertension, as well as the severity of each symptom. b) State whether the veteran's service- connected disabilities prevent him from obtaining or retaining a substantially gainful occupation. Specifically, the examiner should describe what types of employment activities would be limited due to the appellant's service-connected disabilities and any associated disorder, bearing in mind his entire social-medical history, including any degree of industrial impairment caused by one or more nonservice-connected disorders. 2. Thereafter, the RO should review the examination reports to ensure that it is in compliance with the terms of this remand. If not, the reports should be returned to the examiners for correction of any deficiency. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 3. After completion of the above and any additional development of the evidence that the RO may deem necessary, the RO should review the record and readjudicate the TDIU issue on appeal. If the benefit sought remains denied, the veteran and his representative should be issued an appropriate supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs