Citation Nr: 1002887	
Decision Date: 01/20/10    Archive Date: 02/01/10

DOCKET NO.  08-19 060	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, 
Alaska


THE ISSUES

1.  Entitlement to service connection for bilateral hearing 
loss.

2.  Entitlement to service connection for bilateral tinnitus.  

3.  Entitlement to service connection for hypertension.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

Veteran




ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from January 14, 1982 to 
August 27, 1994; from June 15, 2000 to September 30, 2000; 
from November 27, 2001 to April 2, 2002; from April 13, 2002 
to August 21, 2002; and from December 27, 2002 to May 14, 
2003.  The Veteran also had multiple periods of National 
Guard service spanning from 1982-2005.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an October 2006 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Anchorage, Alaska.  In that decision, it was noted that 
service connection for hypertension, bilateral hearing loss, 
and tinnitus had been previously denied in a rating decision 
dated in approximately 1994 or 1995, later deemed to be 1994.  
The RO reopened the claims as the rating decision has 
apparently been lost.  The RO later indicated that the 
Veteran's initial claims folder had indeed been lost so there 
was no physical record of the rating decision, but a master 
record showed a denial of a "heart condition" and 
presumably hearing loss and tinnitus.  The Board finds that 
although there is a presumed prior denial of a "heart 
condition," it is not reasonable to assume is specifically 
included hypertension.  Nevertheless, due to the loss of the 
claims file, the rating decision, and the subsequent 
inability to review any prior rating decision and the 
evidence then of record, the Board finds that a de novo 
review of these claims is appropriate, warranted, and more 
advantageous to the Veteran.  

The issue of service connection for hypertension 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 have bilateral hearing loss 
disability as contemplated by 38 C.F.R. § 3.385; any current 
hearing impairment is not attributable to service nor was 
such present within one year of separation from active 
service.

2.  Bilateral tinnitus is attributable to service.  


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated 
by service and sensorineural hearing loss may not be presumed 
to have been incurred or aggravated in service.  38 U.S.C.A. 
§§ 101, 106, 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & 
Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 
(2009).

2.  Bilateral tinnitus was incurred or aggravated in service.  
38 U.S.C.A. §§ 101, 106, 1101, 1110, 1131 (West 2002 & Supp. 
2009); 38 C.F.R. §§ 3.303, 3.304 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the claimant's claims, 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 claimant's claim, a 
VCAA letter was sent to the claimant which 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 claimant was aware that it was 
ultimately the claimant's responsibility to give VA any 
evidence pertaining to the claims.  The VCAA letter told the 
claimant to provide any relevant evidence in the claimant's 
possession.  See Pelegrini v. Principi, 18 Vet. App. 112, 
120-21 (2004) (Pelegrini II).  In particular, the VCAA 
notification: (1) informed the claimant about the information 
and evidence not of record that is necessary to substantiate 
the claim; (2) informed the claimant about the information 
and evidence that VA will seek to provide; and (3) informed 
the claimant about the information and evidence that the 
claimant is expected to provide.  

In any event, the Board finds that any deficiency in the 
notice to the claimant 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 
claimant, the United States Court of Appeals for Veterans 
Claims (Court) found that the evidence established that the 
claimant 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.)  

If any notice deficiency is present in this case, the Board 
finds that any prejudice due to such error has been overcome 
in this case by the following: (1) based on the 
communications sent to the claimant over the course of this 
appeal, the claimant clearly has actual knowledge of the 
evidence the claimant is required to submit in this case; and 
(2) based on the claimant's contentions as well as the 
communications provided to the claimant by VA, it is 
reasonable to expect that the claimant understands what was 
needed to prevail.  See Shinseki v. Sanders/Simmons, 129 
S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 
F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated 
on insufficiency of notice since its purpose had been 
served.").  In order for the Court to be persuaded that no 
prejudice resulted from a notice error, "the record must 
demonstrate that, despite the error, the adjudication was 
nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. 
App. 112, 118 (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 claimant's service treatment 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.  The claimant was also afforded a VA 
examination in January 2009.  38 C.F.R. § 3.159(c)(4).  This 
examination is adequate as the claims file was reviewed, the 
examiner reviewed the pertinent history, examined the 
Veteran, and provided rationale.  The records satisfy 
38 C.F.R. § 3.326.

The claimant was also sent a letter regarding the appropriate 
disability rating or effective date to be assigned in March 
2006.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006).

In summary, the Board finds that "it is difficult to discern 
what additional guidance VA could have provided to the 
veteran regarding what further evidence he should submit to 
substantiate his claim."  Conway v. Principi, 353 F.3d 1369 
(Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 
165, 178 (2001) (en banc) (observing that "the VCAA is a 
reason to remand many, many claims, but it is not an excuse 
to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 
116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) 
(both observing circumstances as to when a remand would not 
result in any significant benefit to the claimant).


Competency and Credibility

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).  However, 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).  Competent medical evidence means evidence provided 
by a person who is qualified through education, training or 
experience to offer medical diagnoses, statements or 
opinions.  See Duenas v. Principi, 18 Vet. App. 512, 520 
(2004).  A layperson is generally not capable of opining on 
matters requiring medical knowledge.  Routen v. Brown, 10 
Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. 
App. 124, 127 (1998).  Thus, while the Veteran is competent 
to report what comes to him through his senses, he does not 
have medical expertise.  See Layno v. Brown, 6 Vet. App. 465 
(1994).  

However, the United States Court of Appeals for the Federal 
Circuit (Federal Circuit) has held that lay evidence is one 
type of evidence that must be considered and competent lay 
evidence can be sufficient in and of itself.  The Board, 
however, retains the discretion to make credibility 
determinations and otherwise weigh the evidence submitted, 
including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 
1331, 1335 (Fed. Cir. 2006).  This would include weighing the 
absence of contemporary medical evidence against lay 
statements.  

In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court 
indicated that varicose veins was a condition involving 
"veins that are unnaturally distended or abnormally swollen 
and tortuous."  Such symptomatology, the Court concluded, 
was observable and identifiable by lay people.  Because 
varicose veins "may be diagnosed by their unique and readily 
identifiable features, the presence of varicose veins was not 
a determination 'medical in nature' and was capable of lay 
observation."  Thus, that veteran's lay testimony regarding 
varicose vein symptomatology in service represented competent 
evidence.  

In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), 
the Federal Circuit determined that lay evidence can be 
competent and sufficient to establish a diagnosis of a 
condition when (1) a layperson is competent to identify the 
medical condition (noting that sometimes the layperson will 
be competent to identify the condition where the condition is 
simple, for example a broken leg, and sometimes not, for 
example, a form of cancer), (2) the layperson is reporting a 
contemporaneous medical diagnosis, or (3) lay testimony 
describing symptoms at the time supports a later diagnosis by 
a medical professional.  The relevance of lay evidence is not 
limited to the third situation, but extends to the first two 
as well.  Whether lay evidence is competent and sufficient in 
a particular case is a fact issue.

However, although the Veteran is competent in certain 
situations to provide a diagnosis of a simple condition such 
as a broken leg or varicose veins, the Veteran is not 
competent to provide evidence as to more complex medical 
questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 
(2007).

Once evidence is determined to be competent, the Board must 
determine whether such evidence is also credible.  See Layno, 
supra (distinguishing between competency ("a legal concept 
determining whether testimony may be heard and considered") 
and credibility ("a factual determination going to the 
probative value of the evidence to be made after the evidence 
has been admitted")).  See Barr. 

In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 
2009), the Federal Circuit stated that it had previously and 
explicitly rejected the view that competent medical evidence 
is required when the determinative issue in a claim for 
benefits involves either medical etiology or a medical 
diagnosis.  Instead, under section 1154(a) lay evidence can 
be competent and sufficient to establish a diagnosis of a 
condition when: a layperson is competent to identify the 
medical condition; the layperson is reporting a 
contemporaneous medical diagnosis; or lay testimony 
describing symptoms at the time supports a later diagnosis by 
a medical professional.  Davidson reaffirms the holdings in 
Jandreau and Buchanan that VA must consider the competency of 
the lay evidence and cannot outright reject such evidence on 
the basis that such evidence can never establish a medical 
diagnosis or nexus.  This does not mean, however, that lay 
evidence is necessarily always sufficient to identify a 
medical diagnosis, but rather only that it is sufficient in 
those cases where the lay person is competent and does not 
otherwise require specialized medical training and expertise 
to do so, i.e., the Board must determine whether the claimed 
disability is a type of disability for which a lay person is 
competent to provide etiology or nexus evidence.  The Court 
has specifically indicated that lay evidence may establish 
the existence of a current disorder capable of lay 
observation, to specifically include varicose veins, 
tinnitus, and flat feet.  See Barr; Charles v. Principi, 
16 Vet. App. 370, 374 (2002); and Falzone v. Brown, 8 Vet. 
App. 398, 405 (1995).  A claimant generally is not competent 
to diagnose his mental condition; he is only competent to 
identify and explain the symptoms that he observes and 
experiences.  Clemons v . Shinseki, 23 Vet. App. 1 (2009).

The Veteran is competent to report ringing in his ears.  
However, while the Veteran is also competent to report that 
he has trouble hearing, he is not competent to report that he 
has a certain level of hearing impairment as measured in 
Hertz as such assessments are not simple in nature.  See 
Jandreau; see also Woehlaert.  The January 2009 VA examiner's 
opinion set forth below is more probative as to the matter of 
the nature of the Veteran's hearing ability on audiological 
testing because he has the requisite medical expertise.  


Service Connection


Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304.  

Service connection may be granted for disability resulting 
from disease or injury incurred during active duty for 
training (ADT), or injuries suffered during inactive duty 
training (IDT) to include when a cardiac arrest or a 
cerebrovascular accident occurs during such training.  See 38 
U.S.C.A. §§  101(24), 106.

Reserve and National Guard service generally means ADT and 
IDT.  ADT is full time duty for training purposes performed 
by Reservists and National Guardsmen pursuant to 32 U.S.C.A. 
§§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(22); 38 
C.F.R. § 3.6(c).  Basically, this refers to the two weeks of 
annual training, sometimes referred to as "summer camp," that 
each Reservist or National Guardsman must perform each year.  
It can also refer to the Reservist's or Guardsman's initial 
period of training.

IDT includes duty, other than full-time duty, performed for 
training purposes by Reservists and National Guardsmen 
pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 
U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).  Basically, this 
refers to the twelve four-hour weekend drills that each 
Reservist or National Guardsman must perform each year.  
These drills are deemed to be part-time training.

Active military service includes active duty, any period of 
ADT during which the individual concerned was disabled or 
died from a disease or injury incurred or aggravated in line 
of duty, and any period of IDT during which the individual 
concerned was disabled or died from an injury incurred or 
aggravated in line of duty or from an acute myocardial 
infarction, a cardiac arrest, or a cerebrovascular accident 
which occurred during such training.  38 U.S.C.A. § 1106; 38 
C.F.R. § 3.6(a).

Generally, an individual who has only Reserve or National 
Guard service (ADT or IDT with no active duty) is not a 
veteran as legally defined.  In the service connection 
context, for example, this means that the presumption of 
soundness upon entry into service and the presumptive service 
connection provisions of 38 C.F.R. § 3.307, applicable to 
active duty, would not apply to ADT or IDT.  38 U.S.C.A. §§ 
1111, 1112, 1137; 38 C.F.R. § 3.307.

Thus, service connection on a presumptive basis is not 
available where the only service performed is ADT or IDT.  
See Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991).

Hearing loss disability is defined by regulation.  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.  38 C.F.R. § 3.385.

Organic disease of the nervous system such as sensorineural 
hearing loss will be presumed to have been incurred in or 
aggravated by service if it had become manifest to a degree 
of 10 percent or more within one year of the veteran's 
separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 
1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is 
rebuttable by affirmative evidence to the contrary.  38 
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Further, VA regulation provides that, with chronic disease 
shown as such in service (or within an applicable presumptive 
period under section 3.307) so as to permit a finding of 
service connection, subsequent manifestations of the same 
chronic disease at any later date, however remote, are 
service connected, unless clearly attributable to 
intercurrent causes.  For the showing of chronic disease in 
service there is required a combination of manifestations 
sufficient to identify the disease entity, and sufficient 
observation to establish chronicity at the time, as 
distinguished from merely isolated findings or a diagnosis 
including the word "chronic."  When the disease identity is 
established (leprosy, tuberculosis, multiple sclerosis, 
etc.), there is no requirement of an evidentiary showing of 
continuity.  Continuity of symptomatology is required only 
where the condition noted during service (or in the 
presumptive period) is not, in fact, shown to be chronic or 
where the diagnosis of chronicity may be legitimately 
questioned.  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity after 
discharge is required to support the claim.  38 C.F.R. 38 
C.F.R. § 3.303(b).

The Court has held that "the threshold for normal hearing is 
from 0 to 20 dB [decibels], and higher threshold levels 
indicate some degree of hearing loss."  See Hensley v. Brown, 
5 Vet. App. 155, 157 (1993).  The Court, in Hensley, 5 Vet. 
App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not 
preclude service connection for a current hearing disability 
where hearing was within normal limits on audiometric testing 
at separation from service if there is sufficient evidence to 
demonstrate a relationship between the veteran's service and 
his current disability.  The Board notes that the Court's 
directives in Hensley are consistent with 38 C.F.R. § 
3.303(d) which provides that service connection may be 
granted for any disease diagnosed after discharge, when all 
the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  38 
C.F.R.§ 3.303(d).   See Palczewski v. Nicholson, 21 Vet. App. 
174 (2007) (stating 38 C.F.R. § 3.385"prescribes the level 
at which a hearing loss becomes a disability for purposes of 
entitlement to VA compensation.... [N]ot every change in 
hearing should be service connected.") 

In order to establish service connection, the Veteran must 
show: (1) the existence of a present disability; (2) in-
service incurrence or aggravation of a disease or injury; and 
(3) a causal relationship between the present disability and 
the disease or injury incurred or aggravated during the 
service."  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. 
Cir.2004).  There must be competent evidence of a current 
disability; proof as to incurrence or aggravation of a 
disease or injury in service, as provided by either lay or 
medical evidence, as the situation dictates; and competent 
evidence as to a nexus between the inservice injury or 
disease and the current disability.  Cohen v. Brown, 10 Vet. 
App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994).  
The existence of a current disability is the cornerstone of a 
claim for VA disability compensation.  See Degmetich v. 
Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the 
Court's interpretation of sections 1110 and 1131 of the 
statute as requiring the existence of a present disability 
for VA compensation purposes cannot be considered arbitrary 
and therefore the decision based on that interpretation must 
be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. 
Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 
(1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).

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).  


Hearing Loss

A review of the service treatment records shows that on the 
authorized audiological evaluation in August 1981, pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
10
0
0
LEFT
5
10
10
10
10

On the authorized audiological evaluation in August 1982, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
0
10
LEFT
20
15
15
15
15

On the authorized audiological evaluation in November 1983, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
0
10
LEFT
10
10
5
10
10

On the authorized audiological evaluation in August 1984, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
10
0
0
LEFT
10
5
10
10
5

On the authorized audiological evaluation in June 1985, pure 
tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
0
5
LEFT
10
5
10
5
5

On the authorized audiological evaluation in November 1985, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
0
5
LEFT
10
5
10
5
5

On the authorized audiological evaluation in October 1986, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
0
10
LEFT
10
5
10
10
15

On the authorized audiological evaluation in June 1987, pure 
tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
10
0
10
LEFT
10
0
10
5
10

On the authorized audiological evaluation in October 1988, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
0
5
LEFT
20
15
15
15
15

On the authorized audiological evaluation in March 1990, pure 
tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
0
10
LEFT
5
5
5
0
20

On the authorized audiological evaluation in November 1990, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
10
0
10
LEFT
5
5
5
0
15

On the authorized audiological evaluation in January 1992, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
0
10
LEFT
20
15
15
15
15

On the authorized audiological evaluation in September 1993, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
5
15
LEFT
10
5
5
15
20

On the authorized audiological evaluation in May 1995, pure 
tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
10
5
10
LEFT
20
15
15
15
15

On the authorized audiological evaluation in September 1995, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
10
5
10
LEFT
15
10
10
15
20

On the authorized audiological evaluation in August 1999, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
5
10
10
LEFT
5
10
5
10
10

On the authorized audiological evaluation in October 1999, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
5
15
LEFT
10
15
5
10
20

Post-service, the Veteran was afforded a VA examination in 
January 2009 to resolve whether he has hearing loss as 
defined by VA.  On the authorized audiological evaluation, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
20
30
LEFT
15
25
15
30
35

Speech audiometry revealed speech recognition ability of 98 
percent in the right ear and 94 percent in the left ear.  The 
claims file was reviewed by the examiner.  His various 
periods of military duty were noted.  He related that his 
military noise exposure included rivet guns, pneumatic tools, 
and aircraft engine noise.  The Veteran's occupation during 
service was documented as "noise hazardous."  The Veteran 
reported that he used single air protection until 1988 when 
double protection was required.  The Veteran indicated that 
he perforated his right ear drum in 2000-2002 (which was 
substantiated in the service treatment records).  The Veteran 
denied having non-military noise exposure or recreational 
noise exposure.  The examiner noted that the claims file did 
not reveal complaints of hearing loss nor was decreased 
hearing shown during his active duty or National Guard 
service.  The examiner referred to inservice audiological 
findings and concluded that they showed stable normal 
thresholds in the ears.  The Board notes that 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.  See Cohen.  

On current testing, the examiner stated that the audiological 
evaluation revealed normal thresholds 250-3000 Hertz then 
dropping to a mild sensorineural hearing loss at 4000 Hertz 
and then recovering to normal thresholds at 6000-8000 Hertz 
in the right ear.  On the left, the Veteran had normal 
thresholds at 240-2000 Hertz with a mild sensorineural 
hearing loss at 3000-8000 Hertz.  No conductive components 
were present in either ear.  

The examiner indicated that since there were no hearing test 
results after 1999, even though the Veteran did perform 
service in a hazardous career field until 2003, and since 
there was no notation of the Veteran complaining of hearing 
loss, the examiner could not resolve the issue of whether the 
Veteran's claimed hearing loss tinnitus began during or was 
caused by his military service without resorting to mere 
speculation.  However, the Board notes that the audiological 
testing did not reflect hearing loss within the parameters of 
38 C.F.R. § 3.385.  

In sum., the service treatment records do not show that the 
Veteran had hearing loss disability as defined by VA 
regulation.  During the one year presumptive period after 
service, hearing loss disability as defined by VA was neither 
manifest nor diagnosed.  The absence of in-service evidence 
of hearing loss is not fatal to the claim.  See Ledford v. 
Derwinski, 3 Vet. App. 87, 89 (1992); see also Cartright v. 
Derwinski, 2 Vet. App. 24, 25 (1991) (nowhere do VA 
regulations provide that a claimant must establish service 
connection through medical records alone).  Evidence of a 
current hearing loss disability (i.e., one meeting the 
requirements of 38 C.F.R. § 3.385, as noted above) and a 
medically sound basis for attributing such disability to 
service may serve as a basis for a grant of service 
connection for hearing loss.  See Hensley (Section 3.385 does 
not preclude service connection for a current hearing 
disability where hearing was within normal limits on 
audiometric testing at separation from service.)

Thus, the lack of a demonstration of hearing loss disability 
during service may be overcome by post-service findings.  
However, hearing loss was not manifest during the one year 
presumptive period after service, and hearing loss within the 
definition of 38 C.F.R. § 3.385 has not been demonstrated at 
any time, including the current VA examination where the 
specific criteria of 38 C.F.R. § 3.385 were not met.  The 
examiner was unable to conclude that the Veteran had hearing 
loss disability which is attributable to service.  

The Veteran has never had, during service, or at the current 
time, hearing loss disability as contemplated by 38 C.F.R. § 
3.385.  Therefore, the Veteran does not have hearing loss 
disability as contemplated by 38 C.F.R. § 3.385 which is 
attributable to service or present within one year of 
separation from service.  Accordingly, service connection for 
bilateral hearing loss is denied.  

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.  The preponderance is against the 
veteran's claim, and it must be denied.


Tinnitus

The service treatment records do not document tinnitus, but 
the Veteran maintains that he had hearing loss due to his 
inservice duties.  

On the post-service January 2009 VA examination, the examiner 
noted that the Veteran reported having periodic moderate 
ringing tinnitus in both ears, not necessarily at the same 
time.  The Veteran indicated that the tinnitus began 20 years 
ago (during service) and had not changed.  He related that 
his military noise exposure included rivet guns, pneumatic 
tools, and aircraft engine noise.  The Veteran's occupation 
during service was documented as "noise hazardous."  The 
Veteran reported that he used single air protection until 
1988 when double protection was required.  The examiner noted 
that the claims file did not reveal complaints of tinnitus 
during service.  The Veteran denied having non-military noise 
exposure or recreational noise exposure.  

The examiner indicated that since there were no hearing test 
results after 1999, even though the Veteran did perform 
service in a hazardous career field until 2003, and since 
there was no notation of the Veteran complaining of tinnitus 
in the claims file, the examiner could not resolve the issue 
of whether the Veteran's claimed tinnitus began during or was 
caused by his military service without resorting to mere 
speculation.  

The Board notes that the service treatment records did not 
reflect a diagnosis of tinnitus; however, unlike hearing loss 
disability which has specific criteria requirement that are 
not simply observable by a lay person, tinnitus is the type 
of disability which is observable by the Veteran.  See 
Davidson.  The Veteran has provided lay evidence of inservice 
tinnitus and there is a current diagnosis of tinnitus.  
Although the VA examiner did not provide a nexus to service, 
the examiner noted that the Veteran had a history of 
inservice noise exposure during his hazardous noise exposure 
inservice occupation.  

The Board finds that the evidence of record is in relative 
equipoise as to the matter of whether tinnitus is 
attributable to service.  The evidence against the claim was 
the lack of documentation in the service treatment records 
and the inability of the VA examiner to conclude that 
tinnitus is service-related.  

The Board has carefully considered the positive evidence, 
consisting of lay evidence and finds that the Veteran is 
credible since his complaints of tinnitus are consistent with 
his military background which also supports the claim as well 
as the fact that the symptoms of tinnitus are easily 
observable by the Veteran.  Thus, the Veteran is competent to 
comment on the date of onset and continuous symptoms since 
that time, even though a diagnosis was not made until post-
service.  See generally 38 C.F.R. § 3.303(d).  Again, the 
Board emphasizes that the nature of the Veteran's military 
service placed him in a position of being exposed to loud 
noises.  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 he served, 
his military records, and all pertinent medical and lay 
evidence.  See 38 U.S.C.A. § 1154(a).  The Board finds that 
the lay evidence, when taken into consideration with 38 
U.S.C.A. § 1154(a) weighed against the negative evidence in 
this case places the positive and negative evidence in 
equipoise as they are both competent in nature.  

The evidence in this case is so evenly balanced so as to 
allow application of the benefit-of- the-doubt rule as 
required by law and VA regulations.  See 38 U.S.C.A. § 
5107(b); 38 C.F.R. § 3.102.  Accordingly, service connection 
for tinnitus is warranted.


ORDER

Service connection for bilateral hearing loss disability is 
denied.  

Service connection for bilateral tinnitus disability is 
granted.


REMAND

Hypertension

The Veteran contends that his currently diagnosed 
hypertension was incurred or aggravated during service.  The 
RO denied this claim as there was no diagnosis in the first 
period of active service, within one year of that period, and 
it was diagnosed prior to a period of National Guard service 
(in December 1995) and the presumption of soundness does not 
apply to the next National Guard service period.  

The Veteran maintains that he was seen prior to 1995, but was 
considered too young to be placed on medication.  A review of 
the service treatment records reveals that on January 13, 
1987, an examiner recorded a blood pressure reading of 
122/96.  This tends to support the Veteran's statement.  

Besides, the provisional 1995 diagnosis, Air National Guard 
records reflect that on April 12-15, 1997, the Veteran's 
blood pressure readings were recorded as 142/99, 142/84, 
127/75, and 137/87.  On April 15, 1997, it was noted that the 
Veteran had a history of increased blood pressure readings.  
At that time, his blood pressure was 134/94.  On April 28, 
1997, it was noted that the Veteran's blood pressure had 
improved and an increase in his exercise level was discussed.  

On February 2, 1998, the Veteran's blood pressure readings 
were 168/03, 151/100, and 134/84.  On February 6, 1998, the 
Veteran was noted to have high blood pressure readings.  The 
examiner indicated that he had hypertension.  His blood 
pressure readings were 129/85, 128/87, 146/90, 130/80, 
134/97, 139/97, 130/90, and 134/92.  The Veteran's blood 
pressure was monitored that month and the readings were 
consistent with those aforementioned readings.  On March 11, 
1998, the Veteran was noted to have borderline hypertension.  
His blood pressure on that day was 195/93.  

In July 1998, the Veteran continued to have his blood 
pressure monitored.  The readings were 138/91, 132/90, 
128/86, 128/84, 128/88, 128/78, 130/72.  On an October 1999 
periodic physical, it was indicated that the Veteran had 
transient hypertension with no prior history of hypertension 
problems.  The Veteran has continued to be treated for 
hypertension.  

The Veteran has not been afforded a VA hypertension 
examination.  Pursuant to VA's duty to assist, VA will 
provide a medical examination or obtain a medical opinion 
based upon a review of the evidence of record if VA 
determines it is necessary to decide the claim.  38 C.F.R. § 
3.159(c)(4)(i).  A medical examination or medical opinion may 
be deemed necessary where the record contains competent 
medical evidence of a current diagnosed disability, 
establishes that the Veteran suffered an event, injury or 
disease in service, and indicates that the claimed disability 
may be associated with the established event, injury or 
disease in service.  See Id.  

The record before VA need only (1) contain evidence that the 
Veteran has persistent or recurrent symptoms of current 
disability and (2) indicate that those symptoms may be 
associated with the Veteran's active military service.  
Duenas v. Principi, 18 Vet. App. 512 (2004).  

In McLendon, the Court noted that the third prong of 
38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of 
record "indicate" that the claimed disability or symptoms 
may be associated with service, establishes a low threshold.   
See also Locklear v. Nicholson, 20 Vet. App. 410, at 418 
(2006).

There is no opinion of record regarding whether hypertension 
was manifest in the first period of service.  There is no 
opinion of record if hypertension had its onset prior to a 
subsequent period of active duty, if it was aggravated during 
a subsequent period of active duty.  

Because this case presents complex medical and unresolved 
factual questions and since the Board is precluded from 
reaching its own unsubstantiated medical conclusions, further 
development is required.  See Jones v. Principi, 16 Vet. App. 
219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 
(1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 
(1991).

Accordingly, this matter is REMANDED for the following 
actions:

1.  Schedule the Veteran for a VA 
hypertension examination to determine the 
nature and etiology of any current 
hypertension disability.  Any indicated 
tests should be accomplished.  The 
examiner should review the claims folder 
prior to examination.  

The examiner should provide an opinion as 
to whether it is more likely than not, 
less likely than not, or at least as 
likely as not, that hypertension had its 
clinical onset during the initial period 
of active service (from January 14, 1982 
to August 27, 1994) or is related to any 
in-service disease, event, or injury, 
from that period.  The examiner should 
comment on the January 13, 1987 blood 
pressure reading of 122/96, or any other 
noted symptom of hypertension.  The 
examiner should also opine if 
hypertension was manifest in the initial 
post-service year.  

The examiner should provide a complete 
rationale for all opinions expressed and 
conclusions reached.  

If hypertension was not manifest during 
the initial period of service or within a 
year thereof, the examiner should opine 
as to the following:

A.	If the Veteran's hypertension 
underwent an increase in disability 
during a subsequent period of active 
service.  
B.	If the Veteran's hypertension 
underwent an increase in disability 
during a subsequent period of active 
service, was the increase in 
disability due to the natural progress 
of the disease or was the increase in 
disability beyond the natural progress 
of the disease.  

The examiner should again provide a 
complete rationale for all opinions 
expressed and conclusions reached.  

2.  The AMC should then readjudicate the 
claim on appeal in light of all of the 
evidence of record.  If the issue remains 
denied, the Veteran should be provided with a 
supplemental statement of the case as to the 
issue on appeal, and afforded a reasonable 
period of time within which to respond 
thereto.

Thereafter, subject to current appellate procedures, the case 
should be returned to the Board for further appellate 
consideration, if appropriate.  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 2002 & Supp. 2009).



____________________________________________
D. C. Spickler
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs