Citation Nr: 0812835 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-28 483 ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Service connection for hypertension to include as secondary to post-traumatic stress disorder (PTSD). 2. Service connection for hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Associate Counsel INTRODUCTION The veteran had active service from December 1950 to October 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In May 2007, the Board remanded this matter for further development. FINDINGS OF FACT 1. The veteran's hypertension is not related to service or to his service-connected PTSD. 2. The veteran's hearing loss is related to service. CONCLUSIONS OF LAW 1. The veteran's hypertension was not incurred in or aggravated by active service, nor may it be presumed related to service. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. The veteran's hypertension is not proximately due to or a result of a service-connected disorder. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. § 3.310 (2007). 3. A hearing loss disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for hypertension and hearing loss. In the interest of clarity, the Board will initially discuss whether these claims have been properly developed for appellate purposes. The Board will then address the merits of the claims, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the veteran has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claims, and whether the claims have been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA satisfied VCAA notification requirements here in letters from VA dated in August 2004, April 2005, June 2005, and September 2005. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. VA informed the veteran of the evidence needed to substantiate his claims. VA requested from the veteran relevant evidence, or information regarding evidence pertaining to the appeal which VA should obtain for the veteran (the Board also finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claims). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (veteran should be notified that he should submit any pertinent evidence in his possession). VA advised the veteran of the respective duties of the VA and of the veteran in obtaining evidence needed to substantiate his claims. Id. And VA notified the veteran prior to the initial adjudication of his claims. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). The Board notes a deficiency with VCAA notification, however. VA did not inform the veteran regarding disability evaluations and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Nevertheless, the Board finds that any presumed prejudice incurred by the veteran as a result of the late notice here has been rebutted by the record, and that proceeding with a final decision is appropriate. See Sanders v. Nicholson, 487 F.3d 881 (2007). See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. As As will be noted below, the veteran's service connection claim for hypertension will be denied. So the veteran will not be negatively affected by the lack of notice regarding disability evaluations and effective dates (no rating or effective date will be assigned here). Likewise, the veteran has not been prejudiced with regard to his hearing loss claim as the Board will grant service connection for this disorder. When effectuating that award, the RO can rectify any deficiency regarding notice of disability evaluations and effective dates. The Board notes moreover that, in a February 2008 Supplemental Statement of the Case, the RO readjudicated the veteran's claims. See Mayfield, 444 F.3d 1328. The Board therefore finds no prejudice here. In sum, the Board finds that VA satisfied VCAA notification requirements in this matter. VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate a claim for benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. The RO obtained medical records relevant to the appeal. VA afforded the veteran the opportunity to appear before one or more hearings to voice his contentions. And VA provided the veteran with medical examinations for his claims. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the veteran in this appeal. Therefore, the veteran has not been prejudiced as a result of the Board deciding his claims here. II. The Merits of the Claims for Service Connection The veteran claims entitlement to service connection for hypertension and for hearing loss. For the reasons set forth below, the Board disagrees with the veteran's service connection claim for hypertension, but agrees with his contention that a current hearing loss disorder should be service connected. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154 (West 2002); 38 C.F.R. § 3.303(a) (2007). In general, to establish service connection for a disability, a claimant must submit the following: First, medical evidence of a current disability. Second, medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. And third, medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Certain disorders, to include hypertension, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The Board will address separately below the veteran's service connection claims. Hypertension With regard to the veteran's service connection claim for hypertension, the Board notes that the medical evidence of record supports the veteran's claim to having a current hypertension disorder. A July 2007 VA compensation examination report notes a diagnosis of hypertension. The first element of Pond is established here therefore. Pond, 12 Vet. App. at 346. But the evidence indicates that the veteran's hypertension is unrelated to service. The record lacks evidence showing that the veteran incurred a hypertension disorder during service, incurred a hypertension disorder within the first year of discharge from service, or manifested a continuity of symptomatology indicative of a hypertension disorder in the first several years following discharge from service in October 1954. 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Pond, 12 Vet. App. at 346. Service medical records do not indicate any complaints, treatment, or diagnoses for hypertension. The veteran's October 1954 separation report of medical examination does not indicate a hypertension disorder - rather, the report indicates normal blood pressure. The earliest evidence of record of high blood pressure readings is found in VA treatment records dated in 2001, approximately 46 years following service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). And the earliest indication that the veteran believed hypertension was service connected is found in his May 2005 service connection claim, dated over 50 years following service. Based on this evidence, the Board finds that the preponderance of the evidence indicates that the veteran did not incur hypertension during service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Pond, 12 Vet. App. at 346. The second element of Pond is therefore unestablished here. Pond, 12 Vet. App. at 346. As to the third element of Pond, the record contains no medical nexus evidence connecting the veteran's hypertension to service. As such, the Board finds a direct service connection finding unwarranted here. Pond, 12 Vet. App. at 346. The veteran has consistently claimed, moreover, that his hypertension is related to service-connected PTSD. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2007). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). As indicated, the record is clear that the veteran has a current hypertension disorder. And the record also demonstrates that the veteran has current PTSD - the RO recognized this in a March 2004 rating decision granting service connection for PTSD. See Pond and Allen, both supra. But the medical evidence of record does not support the veteran's claim that these two disorders are related. See 38 C.F.R. § 3.310. The only medical evidence addressing secondary service connection is rendered by the July 2007 VA examiner. In her report, the examiner stated that the veteran's hypertension did not relate to his PTSD. As no medical evidence counters this finding, the Board finds that the evidence of record preponderates against the veteran's secondary service connection claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim for benefits, the evidence must preponderate against that claim). See also Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the record lacks the requisite medical evidence of a nexus between the veteran's hypertension and service, or between his hypertension and his service-connected PTSD. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. As the preponderance of the evidence is against the veteran's service connection claim for hypertension, the benefit-of- the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing Loss The veteran claims that his service in the navy caused him a current hearing loss disorder. In assessing the veteran's service connection claim, the Board must first determine whether the veteran has a hearing disability under VA regulations. Hearing disabilities are determined for VA purposes using criteria provided under 38 C.F.R. § 3.385 (2007). Thereunder, a hearing disability will be determined where any of the following threshold measures has been found: where the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory threshold for at least three of the frequencies is 26 decibels or greater; or where speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. In this matter, the Board finds that the veteran does have current bilateral hearing loss. A July 2007 VA audiology examination showed, in each ear, auditory thresholds higher than 40 decibels (from 2000 to 4000 Hertz), and showed speech recognition scores below 94 percent (i.e., 76 percent for the right ear and 84 percent for the left ear). 38 C.F.R. § 3.385. As such, the evidence shows that the veteran has a current hearing loss disorder. Pond, 12 Vet. App. at 346. As to whether this hearing loss relates to service, the Board must also consider 38 U.S.C.A. § 1154 as the record indicates that the veteran may have been exposed to combat - and concomitant acoustic trauma - during service. 38 U.S.C.A. § 1154(b) specifically provides that in the case of veterans of combat, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service- connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Hence, if VA determines that the veteran's service comprised combat with the enemy, and that his hearing loss plausibly relates to such experience, then the veteran's lay testimony or statements regarding his claimed injuries are accepted as conclusive evidence of their occurrence, and no further development or corroborative evidence is required, providing that such testimony is found to be "satisfactory," i.e., credible and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(d). The term "combat" is defined to mean "a fight, encounter, or contest between individuals or groups" and "actual fighting engagement of military forces." VAOPGCPREC 12-99 (Oct. 1999) citing WEBSTER'S THIRD NEW INT'L DICTIONARY 452 (1981). The phrase "engaged in combat with the enemy" requires that the veteran "have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99. The fact that the veteran may have served in a "combat area" or "combat zone" does not mean that he himself engaged in combat with the enemy. Id. Moreover, a general statement in the veteran's service personnel records that he participated in a particular operation or campaign would not, in itself, establish that he engaged in combat with the enemy because the terms "operation" and "campaign" encompass both combat and non-combat activities. Id. Whether or not a veteran "engaged in combat with the enemy" must be determined through recognized military citations or other supportive evidence. No single item of evidence is determinative, and VA must assess the credibility, probative value, and relative weight of each relevant item of evidence. Id. The claimant's assertions that he engaged in combat with the enemy are not ignored, but are evaluated along with the other evidence of record. Id. If VA determines that the veteran did not engage in combat with the enemy, the favorable presumption under 38 U.S.C.A. § 1154(b) will not apply. In this case, the Board finds the evidence in equipoise on the issue of whether the veteran engaged in combat with the enemy. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. On the one hand, much of the evidence of record indicates that the veteran did not engage in combat. The veteran's MOS does not indicate combat service. His DD Form 214 notes the veteran's MOS as a teletype operator. The DD Form 214 does not indicate that he was assigned or participated in combat duties. None of the veteran's awarded medals or decorations shows combat service. The veteran's DD Form 214 shows that the veteran was awarded the China Service Medal, the National Defense Service Medal, the Korean Service Medal, and the United Nations Service Medal. These medals do not indicate combat service. The veteran's DD Form 214 shows that the veteran did not receive a Combat Infantryman Medal, a Purple Heart Medal, or any other decoration that would indicate combat service. The veteran has submitted no evidence - such as buddy statements - supporting his claim to combat. The veteran's discharge report of medical examination, which is of record, indicates no ear-related disorder that may have been caused by combat. And the earliest medical evidence of record of post-service hearing loss is found in the early 2000s, over 45 years following the veteran's discharge from service in 1954. See Maxson, supra. On the other hand, the RO has found that credible evidence indicates that the veteran experienced combat during the Korean Conflict - as the RO noted in its March 2004 rating decision granting service connection for PTSD, evidence of record shows that the veteran served aboard a naval vessel which encountered combat during the Korean Conflict. Specifically, records show that the veteran's ship, the USS Floyd Parks, received hostile gunfire from enemy shore batteries, and responded with over 12 thousand rounds of five-inch projectiles. This evidence supports the veteran's claim to combat exposure, and to experiencing acoustic trauma during service. As such, the Board finds this to be an appropriate case in which to invoke VA's doctrine of reasonable doubt, and thereby find applicable here the presumption noted under 38 U.S.C.A. § 1154. See 38 U.S.C.A. § 5107(b). It must therefore be presumed that the veteran incurred his hearing loss in service. The Board has reviewed the record to determine whether "clear and convincing" evidence exists to rebut the presumption under 38 U.S.C.A. § 1154. In doing so, the Board reviewed the medical evidence of record which consists of VA treatment records and VA compensation examination reports dated in October 2004, November 2004, July 2007, and November 2007. The October 2004 and July 2007 VA reports do not comment on nexus. But the November 2004 and November 2007 reports do - the November 2004 examiner was "more in favor" of the position that the veteran's hearing loss related to his post-service civilian employment, while the November 2007 examiner found it "mere speculation" to comment on medical nexus here. Though, cumulatively, this evidence may preponderate against the veteran's claim, it does not comprise "clear and convincing" evidence against his claim. As such, the presumption to service connection under 38 U.S.C.A. § 1154 stands. (CONTINUED ON NEXT PAGE) ORDER 1. Service connection for hypertension, to include as secondary to post-traumatic stress disorder, is denied. 2. Service connection for hearing loss is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs