Citation Nr: 0813880 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-01 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The veteran had active service from March 1974 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The veteran's claims file has since been transferred to the RO in St. Louis, Missouri. In April 2004, an informal conference was held at the San Diego RO in lieu of a personal hearing. The veteran's claims were remanded by the Board in May 2005 for the purpose of obtaining VA examinations which were conducted. FINDINGS OF FACT 1. Hypertension was not manifest during service, hypertension was not manifest within one year of separation, and the veteran's current diagnosis of hypertension is not attributable to service. 2. Tinnitus did not have its onset in or is otherwise attributable to service. CONCLUSIONS OF LAW 1. Hypertension was neither incurred in nor aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the veteran's claim, letters dated in August 2002 and October 2002 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the veteran to provide any relevant evidence in his possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notification: (1) informed the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the veteran about the information and evidence that VA will seek to provide; (3) informed the veteran about the information and evidence that the veteran is expected to provide; and (4) requested that the veteran provide any evidence in his possession that pertains to the claims, or something to the effect that the veteran should "give us everything you've got pertaining to your claim." See Pelegrini II. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). In any event, the Board finds that any deficiency in the notice to the veteran or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the veteran, the United States Court of Appeals for Veterans Claims (Court) found that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) In Sanders v. Nicholson, 487 F. 3d 881 (2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the veteran, see Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, No. 05- 0355, slip op. at 9 (U.S. Vet. App. January 30, 2008). If any notice deficiency is present in this case, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the veteran clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the veteran's contentions as well as the communications provided to the veteran by VA, it is reasonable to expect that the veteran understands what was needed to prevail. See Sanders; see also Simmons v. Nicholson, 487 F. 3d 892 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. With respect to the duty to assist, the Board notes that the veteran has undergone a VA examination in conjunction with each of his claims for service connection. 38 C.F.R. § 3.159(c)(4). There is no objective evidence indicating that there has been a material change in either condition since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough, the examinations in this case are adequate upon which to base a decision, and the records satisfy 38 C.F.R. § 3.326. Since the Board has concluded that the preponderance of the evidence is against the claim of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including hypertension, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Court has held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A claim of service connection for a disability must be accompanied by medical evidence establishing that the veteran currently has a claimed disability. Absent proof of a present disability, there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes). In determining whether service connection is warranted for a disability, 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). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Hypertension The veteran filed a claim for service connection for hypertension in July 2002. During his period of active duty, the veteran's blood pressure was 140/80 and 140/90 in September 1974, 124/88 in March 1975, 146/76 in December 1976, 124/80 and 148/90 (after 10 minutes of rest) in May 1977, and 140/80 in September 1978. Although instances of elevated blood pressure were noted, his service medical records are silent as to any treatment or diagnosis of hypertension. His March 1978 separation examination yielded a blood pressure reading of 124/80. The veteran's heart evaluation was noted to be normal. Following the veteran's 1978 separation from service, the record reflects that he was seen by Dr. M. for various medical complaints. It was noted in July 1985 that the veteran had hypertension. Dr. M. did not provide the etiology of the hypertension diagnosis. VA outpatient reports from June 2001 and June 2002 note a diagnosis of hypertension. However, an opinion as to a nexus to the veteran's period of active service was not provided in either report. To that end, the veteran was afforded a VA examination in October 2002. The examiner noted a review of the veteran's claims file. An initial diagnosis of hypertension in 1984 was noted, as were high blood pressure readings in 2000 and 2001. At the time of the examination, the veteran's blood pressure was 152/94 when seated, 150/92 in the recumbent position, and 148/90 when standing. Asymptomatic, mild hypertension was diagnosed. The examiner stated that the veteran's hypertension did not exist during active service. Instead, the examiner opined that the veteran's onset of high blood pressure occurred after his active duty, so the claim for hypertension was at least as likely as not unrelated to his military service. The veteran was afforded another VA examination in September 2005. The veteran's blood pressure reading was 156/104 - right arm sitting, 154/104 - left arm sitting, 152/104 - right arm in prone position, 150/100 - left arm prone position, and 154/100 - standing, both arms. According to the examiner, instances of elevated blood pressure in service may have been caused by other conditions for which the veteran was being examined at those times. The examiner stated that a consistent elevation in blood pressure during service, to meet the standards required for a diagnosis of hypertension, was not evident. Three-day hypertension testing was not performed during the veteran's period of service. The examiner then opined that he did not find documented evidence to support a diagnosis of hypertension within the veteran's service medical records. The examiner stated that the veteran's hypertension was more likely secondary to obesity, instead of his period of active service. The same examiner provided an addendum opinion in August 2007. At that time, a review of the veteran's updated claims file was noted, along with the veteran's private treatment records from Dr. M. from October 1982 through June 2004. The examiner stated that hypertension is a chronic condition of elevated blood pressure, and that such a pattern was not evident from the isolated periods of elevated blood pressure recorded in the veteran's service medical records. Therefore, the examiner was unable to render a diagnosis of hypertension during the veteran's period of military service or within the first year thereafter. The examiner noted that the veteran's first diagnosis of hypertension was in fact July 1985 (as shown in Dr. M.'s records). No treatment was rendered for hypertension during service or within one year following service. Therefore, the examiner stated that it was unlikely that the veteran's hypertension was secondary to his period of active duty. Although the veteran has satisfied the first criterion necessary to establish service connection for hypertension, a current diagnosis thereof, he has failed to demonstrate that he suffered from hypertension during his period of active duty. Further, the veteran's record is silent as to an etiological nexus linking his current disorder to his military service. The Board notes that, although the veteran believes that his hypertension was incurred during active duty, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Neither the Board nor the veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen v. Brown, 10 Vet. App. 128 (1997). As noted above, hypertension was not diagnosed during the veteran's period of service. Following service, hypertension was neither manifest nor diagnosed within one year of separation from service. There is no competent medical evidence of any link between his current diagnosis and service. As noted, the veteran is not competent to make this causal link or to state the etiology of his currently- diagnosed hypertension. Instead, the competent medical evidence shows that hypertension is not related to service. The October 2002 VA examiner stated that the veteran's hypertension did not exist during active service. Instead, the examiner opined that the veteran's onset of high blood pressure occurred after his active duty, so the claim for hypertension is at least as likely as not unrelated to his military service. In September 2005, another VA examiner stated that the veteran's hypertension was more likely secondary to obesity, instead of his period of active service. In an addendum opinion, he noted that it was unlikely that the veteran's hypertension was secondary to his period of active duty. The Board attaches significant probative value to these opinions, as they were well- reasoned, detailed, consistent with other evidence of record, and included a review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). In sum, the competent evidence does not establish that the veteran's hypertension had its onset in service or within one year of separation. The service medical records showed isolated elevated blood pressure levels, but they are silent as to a diagnosis or treatment for hypertension. Thus, there was no chronic disability shown during service. Further, there is no continuity of symptomatology following service. There is no record of any continuous symptoms from his separation from service onward. Rather, the record establishes that approximately 8 years after separation, the veteran was diagnosed with hypertension. Despite the veteran's contentions that he has experienced hypertension since service, the record is devoid of supporting evidence. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, the preponderance is against the veteran's claim, and it must be denied. Tinnitus The veteran filed a claim for service connection for tinnitus in July 2002. His service medical records do not reveal a diagnosis of tinnitus, in either ear, and tinnitus was not noted on his March 1978 separation examination. His ear evaluation was noted to be normal. Post-service, a VA outpatient report from July 2002 noted occasional tinnitus in the right ear, a few times per year, and lasting only a few seconds. The veteran reported significant noise exposure during his period of military service. He also stated that he wore double hearing protection while working as a boiler technician in ship engine rooms in service. Shooting firearms without ear protection, both in the military and as a civilian, was also noted. During a September 2005 VA examination, the veteran stated that the onset of tinnitus occurred 30 years prior while working in the boiler room. He noted that hearing protection was not effective. Pre-military and post-military noise exposure was denied. The veteran stated that his tinnitus was unilateral only, and in his left ear. He reported that tinnitus occurred intermittently, several times per day, and that it could last from a few minutes to half an hour. Referring to the veteran's service medical records, the examiner noted that audiometric testing in January 1976 revealed mild hearing loss in the left ear and normal hearing in the right (except for mild hearing loss at 1000 Hertz). Testing in November that year demonstrated normal hearing, bilaterally. Testing performed in June 1977 yielded normal hearing, bilaterally, except for mild hearing loss in the right ear at 1000 Hertz. The veteran's separation examination noted normal hearing, bilaterally. The examiner noted that if the veteran's tinnitus had been related to military service, it would have been expected that the veteran would have had tinnitus in both ears rather than monaurally. The examiner stated that because the veteran's hearing was within normal limits in June 1977 and at separation, the examiner opined that the veteran's service records were not suggestive of noise-induced hearing loss, and that tinnitus was not at least as likely as not related to service. In a July 2007 addendum opinion, the same examiner noted a review of the veteran's claims file. The examiner then noted that the veteran had complained of right ear tinnitus (only occurring a few times per year and lasting only a few seconds) in July 2002, and that the veteran reported left ear tinnitus, with an onset in service, during the September 2005 VA examination. The examiner also noted that the July 2002 audiological evaluation yielded hearing within normal limits, save for mild left ear hearing loss at 6000 Hz. The examiner stated that, even if the veteran's left ear tinnitus had begun during service, a diagnosis of noise-induced tinnitus in the absence of noise-induced hearing loss would be difficult to proffer. It was also noted that the veteran's separation examination was not indicative of noise-induced hearing loss (especially in the 3000 Hertz - 6000 Hertz range). Therefore, the examiner concluded that it was not at least as likely as not that the veteran's tinnitus in the left ear was related to service. To support his opinion, the examiner relied upon the veteran's own conflicting reports as to when tinnitus began and in which ear, the absence of significant sensorineural hearing loss in the left ear during service, and the absence of tinnitus in July 2002. Instead, the examiner believed that the veteran's tinnitus was the result of an underlying auditory pathology. Even though the veteran has a current diagnosis of tinnitus, he has failed to demonstrate that the disorder began during his period of active duty. Further, the record is silent as to a medical link between his current disorder and his military service. Rather, the probative evidence, the VA medical examination reports, show that tinnitus is not attributable to service. The Board notes that the veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Therefore, the veteran is competent to report that he experienced tinnitus during service. However, as previously noted, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. See Espiritu. In this case, tinnitus was not diagnosed during the veteran's period of service. There is no competent medical evidence of any link between his current diagnosis of tinnitus and service. As noted, the veteran is not competent to make this causal link or to state an etiological connection. Instead, the competent medical evidence shows that his tinnitus is not related to service. A VA opinion, initially offered in September 2005 and reiterated in a July 2007 addendum opinion, stated that it was not as likely as not that the veteran's current disorder was related to his period of active service. The examiner conducted a thorough examination, and a rationale was provided in support of each opinion. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, the preponderance is against the veteran's claim, and it must be denied. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs