Citation Nr: 0813515 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-06 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Douglas J. Boorstein, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Navy from October 1965 to August 1967 in Vietnam. The veteran received a Purple Heart as a result of this service. The veteran also served on active duty during Operations Desert Shield and Desert Storm from January 1991 to April 1991. The veteran served in the Navy Reserves for a period of time, including various periods of active duty for training (ACDUTRA). The veteran has not contended that any of these periods of ACDUTRA contributed to his disabilities. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied service connection for hearing loss, tinnitus, and hypertension claimed as secondary to diabetes. This decision also assigned a rating of 10 percent to the veteran's PTSD and assigned a 20 percent rating to the veteran's diabetes mellitus with peripheral neuropathy. In May 2005 the 10 percent rating for PTSD was increased to 30 percent. The veteran filed notice of disagreements to the December 2004 rating determination in May 2005 and in June 2005. In January 2006, the RO issued two statements of the case (SOCs). The first SOC addressed the issues of entitlement to a rating in excess of 20 percent for diabetes mellitus type II, with peripheral neuropathy; service connection for hypertension, to include as secondary to diabetes mellitus; and the evaluation of the veteran's PTSD at 30 percent. The second SOC addressed the issues of entitlement to service connection for bilateral hearing loss and tinnitus. In response, the RO received two VA Forms 9 from the veteran in January 2006. On one VA Form 9, the veteran filled in the appropriate box, indicating that he only wanted to appeal the issue of service connection for hypertension due to his diabetes. On the other VA Form 9, the veteran indicated that he wished to appeal all issues, and discussed his hearing loss and tinnitus claims. Given the foregoing procedural development, the Board finds that the issues listed on the title page have been properly developed for appellate review. In September 2006 the veteran indicated that his PTSD had increased in severity, and via other correspondence, documents, and medical evidence indicated that he is unemployable. Additionally, in July 2007, the veteran's representative noted that the veteran's peripheral neuropathy disorder is included with his diabetes mellitus evaluation and indicated that separate ratings should be assigned. These matters are referred to the RO for the appropriate action. FINDINGS OF FACT 1. Competent evidence of hearing loss in service, manifestations of sensorineural hearing loss within one year following the veteran's discharge from service, or of a nexus between the post service bilateral hearing loss disability and service, is not of record. 2. Competent evidence of tinnitus in service or of a nexus between tinnitus and service is not of record. 3. Hypertension was diagnosed many years after service and is not shown to be causally related to service, or caused or aggravated by the service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service nor may sensorineural hearing loss be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). 3. The veteran's hypertension is not proximately due to or the result of his service-connected diabetes mellitus, nor is it directly or presumptively related to service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria The veteran contends that his bilateral hearing loss and tinnitus are due to his service. The veteran also contends that his hypertension is due to his service-connected diabetes mellitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for sensorineural hearing loss (an organic disease of the nervous system) and hypertension may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be: (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of any veteran who engaged in combat with the enemy in active service, the 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. 38 U.S.C.A. § 1154(b); see also 38 C.F.R. § 3.304(d). See VAOPGCPREC 12-99 (1999). For hearing loss claims, entitlement to service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385 which provides: For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. This regulation defines hearing loss disability for VA compensation purposes. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Analysis Hearing Loss and Tinnitus The veteran contends that he has bilateral hearing loss and tinnitus due to his service. After careful consideration of the evidence, the Board finds that the veteran's bilateral hearing loss and tinnitus are not related to his service. The Board concedes that the veteran has a current disability, the veteran has received treatment from VA for tinnitus since 2003, and an audiogram in 2004 indicates that the veteran has hearing difficulties. Additionally, because the veteran was in combat, as he has received the Purple Heart Medal, the Board concedes that he was exposed to acoustic trauma during service. Therefore, the outcome of this case rests upon whether there is competent evidence of a medical nexus between the veteran's service and his current disabilities. See Wade v. West, 11 Vet. App. 302 (1998) (Section 1154(b) applies a reduced evidentiary burden which can be used to establish the incurrence of an event in service; however, competent evidence of a current disability and of a nexus between service and a current disability is still required.). The available service medical records do not note hearing loss or tinnitus disorders. It is noted that a separation examination after the veteran's active duty service from October 1965 to August 1966 is not of record. Additionally, on reserve examinations from May 1974 through January 1983, the veteran's ears and eardrums were found to be normal; when tested, whispered voice test was 15 out of 15 bilaterally; and he denied ear, nose or throat trouble and hearing loss. In January 1984, the veteran's ears and eardrums were both found to be normal, but a whispered voice test was found to be 13 out of 15 bilaterally. The veteran denied ear, nose, or throat trouble and hearing loss. On a reserve examination in February 1984, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 20 25 LEFT 10 -5 0 20 40 On this examination, the veteran's hearing loss met the criteria for hearing loss in the left ear, as the auditory threshold at 4000 Hz was 40 decibels. A hearing loss disability in the right ear for VA purposes was not found. Thereafter, however, the record shows that on reserve examinations from February 1986 through October 2004, the veteran's hearing tests failed to meet the criteria for VA disability as proscribed in Section 3.385 and no reference to tinnitus was made. In February 1986 and 1987, examination of the ears and eardrums were both found to be normal, a whispered voice test was 15 out of 15 bilaterally. The veteran denied ear, nose, or throat trouble and hearing loss. In February 1988, the veteran's ears and eardrums were both found to be normal and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 10 LEFT 5 15 10 10 10 In February 1989, the veteran's ears and eardrums were both found to be normal and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 15 5 5 15 LEFT 15 15 10 5 25 In June 1989, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 25 LEFT -5 -5 -5 5 5 Additionally, in February 1992, the veteran's ears and ear drums were both found to be normal, although no hearing test was performed. The veteran denied ear, nose, or throat trouble and hearing loss. An October 2004 VA treatment note indicated that based on the available medical records, the veteran's hearing loss occurred within 10 years. October 1994 is more than one year after the veteran's active service or active duty during Operations Desert Shield and Desert Storm. See 38 C.F.R. §§ 3.307, 3.309, 3.385 (2007). Based on the foregoing evidence, the record shows that the veteran's hearing loss and tinnitus did not begin in service, manifest to a compensable degree within a year after service, or continue in symptomatology since any period of service. The veteran received a VA Compensation and Pension Examination in November 2004. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 30 50 LEFT 20 20 25 40 75 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 88 percent in the left ear. The examiner noted that the veteran reported decreased hearing and an intermittent cricket/ringing type head noise. His hearing difficulties occur in background noise, such as crowds, as well as in quiet environments. The veteran characterized his hearing as "fair." During the examination, the veteran reported his service in the Marine Corps and National Guard, including a brief period of service during Operations Desert Shield and Desert Storm. The veteran reported that his only non-military exposure to noise consisted of motorcycles and chainsaws. After consideration of the veteran's claims file, the examiner determined that the applicable pure tone tests from the 1980s do not support a claim of loss of hearing from combat or training during the Vietnam War. The examiner noted that up until 1989, hearing sensitivity was within normal limits from 500 to 4000 Hertz with some loss of hearing beginning to be shown at 6000 Hertz. Regarding the veteran's service during the first Gulf War, the examiner determined that it was unlikely that this degree of loss was due to the veteran's four months of active duty, although the examiner noted that there was a paucity of records for this time period. The examiner added that it was less likely as not that the complaint of hearing is a consequence of acoustic trauma during the Vietnam era. The examiner determined that the claim of hearing loss related to events of that time is not supported by the hearing tests of the 1980s. The examiner determined that the question of the onset of a hearing loss or aggravation during Operations Desert Shield and Desert Storm could not be answered based on the available information, however the examiner indicated that it was unlikely that this was the case. Regarding the veteran's tinnitus, the examiner determined that it is less likely as not that the veteran's tinnitus was incurred in service. There was no clear nexus between the veteran's tinnitus and his service. The examiner noted that the veteran reported tinnitus on his initial VA examination in 2001. In light of this opinion, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for his hearing loss and tinnitus. The Board is aware of medical records from private physicians noting the veteran's hearing loss and service. The records imply that this hearing loss is due to the veteran's service. It is noted that it is the Board's responsibility to weigh the credibility and probative value of all of the evidence and, in so doing, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310- 11 (1999). It is also the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). In evaluating the probative value of competent medical evidence, the United States Court of Appeals for Veterans Claims (Court) has stated, in pertinent part: "The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the Board finds that the private medical statements are of little or no probative value. The physician does not provide any rationale to support his opinions regarding the etiology of the veteran's hearing loss. Further, the private physician did not indicate that he had reviewed the veteran's claims file. While the veteran appears sincere in his belief that his hearing problems are attributable to his service, the veteran is not competent to attribute his current bilateral hearing loss disability and tinnitus disability to his service, as that would require a medical opinion. Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996); see Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The preponderance of the competent and credible evidence is against the claims of entitlement to service connection for bilateral hearing loss and tinnitus, and there is no doubt to be resolved. See Gilbert, 1 Vet. App. at 55. The claims are denied. Hypertension as Secondary to Diabetes Mellitus The veteran contends that his hypertension is secondary to his diabetes mellitus. He maintains that it is related to his service-connected diabetes mellitus. At the outset, it is noted that service connection for diabetes mellitus is in effect. However, the veteran underwent a VA examination in October 2004. The examiner reviewed the veteran's claims file and noted that the veteran had both hypertension and diabetes mellitus, type II. The examiner also noted that the veteran did not have diabetic nephropathy and determined that the veteran's hypertension was not related to his diabetes mellitus. The Board is aware of statements from the veteran's VA primary care physicians dated in May 2005 and in March 2006, indicating that the veteran's hypertension is related to or aggravated by his diabetes. Here, however, there is no evidence that the physicians reviewed the veteran's claims file. Further, the physician in 2006 failed to provide a rationale for his opinion, other than a generic photocopy of a medical study regarding hypertension and diabetes. In this regard, the Board notes that the Court has indicated that medical treatise evidence must demonstrate a connection between service incurrence and present injury or condition. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Treatise evidence must "not simply provide speculative generic statements not relevant to the claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. Generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive. Mattern v. West, 12 Vet. App. 222, 227 (1999). The Board finds that the VA examiner's opinion is of great probative value. The examiner reviewed the veteran's claims file, reviewed his medical history, and examined the veteran. He also provided a rationale which is consistent with the other objective evidence of record. The private medical opinions, however, merely indicate that the veteran's disorder is related to his service-connected disability without explanation or review of the claims file. Thus, they are of little probative value. Schoolman at 310-11 (1999); see also Prejean v. West, 13 Vet. App. 444 (2000) (Factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the thoroughness and detail of the opinion). The veteran has also submitted a document discussing blood pressure and diabetes mellitus, which appears to come from VA's website, indicating that if a veteran has diabetes, the doctor will regularly test the veteran's blood pressure to prevent serious complications. Again, under Libertine, the treatise must provide specific information regarding the veteran's hypertension and relate it to his condition. This printout does not do so and therefore does not provide sufficient evidence to prove the veteran's claim. While the veteran appears sincere in his belief that his hypertension is attributable to his service-connected diabetes, the veteran is not competent to attribute his hypertension to his diabetes mellitus, as that would require a medical opinion. Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996); see Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In this regard, the Board notes that the veteran has indicated disagreement with the VA examiner's statement that because the veteran did not have diabetic nephropathy, his hypertension was not secondary to his diabetes mellitus. The examiner stated that the lack of diabetic nephropathy indicated that the veteran's hypertension was not connected to his diabetes mellitus. The veteran disputed that statement, stating that he believed nephropathy was not related to diabetes-induced hypertension. Regarding this statement, the Board notes that the veteran does not have the requisite medical knowledge needed to contest the examiner's opinion. See Espiritu. The veteran also stated that he has nephropathy. The veteran thus implies that the examiner's opinion is inconsistent with the evidence of record and should not be considered. In this regard, the Board notes that nephropathy is defined in Dorland's Medical Dictionary as "any disease of the kidney; see also nephritis. Called also nephrosis." Dorland's Illustrated Medical Dictionary 1230-31 (30th ed. 2003) (emphasis in original). Diabetic nephropathy is defined as "the nephropathy that commonly accompanies later stages of diabetes mellitus; it begins with hyperfiltration, renal hypertrophy, microalbuminuria, and hypertension; in time, proteinuria develops, with other signs of renal failure leading to end-stage renal disease." Id. The veteran does have peripheral neuropathy due to his diabetes mellitus type II (as diagnosed in the October 2004 VA examination). Neuropathy is defined as "a functional disturbance or pathological change in the peripheral nervous system..." Id. at 1257 (30th ed. 2003). The veteran has neuropathy, but not nephropathy. Thus, the Board finds that the VA examiner's opinion is consistent with the evidence in the record. The preponderance of the competent and credible evidence is against the claim for service connection for hypertension, claimed as secondary to diabetes mellitus, and there is no doubt to be resolved. See Gilbert, 1 Vet. App. at 55. The claim is denied. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board concludes that the veteran has been afforded proper notice under the VCAA. The RO provided a VCAA notice letter to the veteran in July 2004, prior to the initial adjudication of the claim. The VCAA letter notified the veteran of what information and evidence must be submitted by the veteran and what information and evidence would be obtained by the VA. The content of the letter clearly complied with all four elements set forth by the Court in Pelegrini, supra. To whatever extent the recent decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. It appears that notice regarding Dingess has not been sent. However, since the claim for service connection is being denied, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the veteran. The July 2004 VCAA letter did not specifically explain what was necessary to prove a secondary service connection for hypertension. The Board finds, however, that the veteran is not prejudiced, as it is clear that the veteran had actual knowledge of the evidence necessary to substantiate the claim. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Specifically, the veteran has submitted multiple pieces of evidence to indicate that his hypertension was caused by his diabetes mellitus. VA can demonstrate that a notice defect is not prejudicial if it can be demonstrate that any defect in notice was cured by actual knowledge on the part of the veteran that certain evidence (i.e. the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.) see also Overton v. Nicholson, 20 Vet. App. 427 (2006). It is clear, therefore, that the veteran understood what he needed to prove under the applicable federal regulations. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has received the veteran's service medical records, the veteran's VA records, and the veteran's private medical records. Regarding the veteran's service medical records, the Board notes that although there is no separation examination of record for either period of the veteran's active duty service, service medical records subsequent to the veteran's active service have been considered when deciding the veteran's claim. A request was sent to the National Personnel Records Center, and it appears all available records relevant to the veteran's active duty service were obtained. The record also reflects that the veteran received examinations regarding his tinnitus, bilateral hearing loss, and hypertension, claimed as secondary to diabetes mellitus. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been received. Therefore, no further assistance to the veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Service connection for hypertension, claimed as secondary to service-connected diabetes mellitus, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs