Citation Nr: 1145708 Decision Date: 12/14/11 Archive Date: 12/21/11 DOCKET NO. 08-33 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for glaucoma. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for hypertension. 5. Entitlement to an initial compensable evaluation for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Ken LaVan, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Board hearing at the RO in St. Petersburg, Florida in June 2011. This transcript has been associated with the file. In July 2011, the Veteran submitted additional evidence. However, the Veteran and his representative waived RO review of this evidence and therefore, Board adjudication of the current appeal may go forward without remanding the appeal for a supplemental statement of the case. See 38 C.F.R. § 20.1304(c)(2011). The Board notes that the Veteran's claim of entitlement to service connection for tinnitus was denied in a September 2008 rating decision. In September 2008 the Veteran filed a statement indicating that he believed his tinnitus should be service-connected. The RO interpreted this as an attempt to reopen the claim for tinnitus, and not as a notice of disagreement with the September 2008 rating decision. However, as this was received in the same month of the rating decision, the Board has given the benefit of the doubt to the Veteran and treated the September 2008 statement as a notice of disagreement with the earlier September 2008 rating decision. As such, it is improper to characterize the claim as whether new and material evidence has been submitted sufficient to reopen the tinnitus claim. Instead the claim should be treated as entitlement to service connection for tinnitus. The case was brought before the Board in January 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include scheduling the Veteran for a Board hearing. As noted above, the Veteran was afforded a hearing in June 2011. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The issues of entitlement to service connection for tinnitus and entitlement to an initial compensable evaluation for a bilateral hearing loss disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran perfected a timely appeal of the RO's March 2010 denial of entitlement to service connection for sleep apnea and glaucoma. 2. At the June 2011 Board hearing, and prior to the Board's decision, the Veteran expressed his desire to withdraw from appellate review the issues of entitlement to service connection for sleep apnea and glaucoma. 3. The preponderance of the evidence is against a finding that hypertension is related to service. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a Substantive Appeal with respect to the claims of entitlement to service connection for sleep apnea and glaucoma have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2011). 2. Hypertension was not incurred in or aggravated by active military service and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). Sleep Apnea and Glaucoma A Veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2011). When a Veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2011). As discussed above, in a March 2010 rating decision, the RO denied entitlement to service connection for sleep apnea and glaucoma. Following receipt of notice of that determination, the Veteran perfected a timely appeal with respect to the RO's denial of entitlement to service connection for these issues. Subsequently, at the June 2011 Board hearing, the Veteran requested that his claims of entitlement to service connection for sleep apnea and glaucoma be withdrawn. In view of the Veteran's expressed desires, the Board concludes that further action with regard to his increased rating claim is not appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.204. The Board does not have jurisdiction over the withdrawn issues and, as such, must dismiss the appeal of this claim. See 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements for the Veteran's claim of entitlement to service connection for hypertension were met in this case by a letter sent to the Veteran in February 2010. This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). This letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. A VA examination was not provided in conjunction with the Veteran's claim for hypertension, and, as discussed below, the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). In the present case, there is no competent evidence of record to support a finding that the Veteran's hypertension is related to service. The Veteran himself has provided statements that his hypertension is related to service, however as he is not competent to provide evidence of a diagnosis or etiology of a condition, the record is silent for a nexus between the Veteran's current disabilities and his active service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion). The Veteran has not satisfied all the elements of McLendon; therefore, VA is not required to provide him with a VA examination in conjunction with his claim. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Service Connection The Veteran contends that he has hypertension began in service. For this reason he believes his claim of service connection should be granted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain chronic disorders, including hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For VA rating purposes, "hypertension" means that diastolic blood pressure is predominately 90 millimeter (mm) or greater; "isolated systolic hypertension" means that the systolic blood pressure is predominately 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The Veteran was afforded a medical examination at entrance to, and separation from, service in August 1972 and May 1975, respectively. At his entrance examination his blood pressure was recorded as 110/70. There was no indication that the Veteran was suffering from hypertension at entrance to service. A statement in July 1973, when the Veteran physically entered service, noted the Veteran did not have any additional disqualifying defects since the August 1972 examination. The Veteran's blood pressure was also recorded on various occasions while in-service. A February 1975 medical record reported the Veteran's blood pressure was 140/80 and an April 1975 record noted it was 132/86. At the Veteran's separation examination his blood pressure was recorded as 120/60. There was no diagnosis of hypertension at this examination. In short, the records are devoid of any complaints, diagnoses, or treatments consistent with hypertension. The lack of findings of record weighs against the Veteran's assertion that he suffered from this disability in-service. Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The Board has reviewed the Veteran's post-service treatment records, however there is no opinion linking his current hypertension to service. In this regard, a May 2007 VA treatment record noted the Veteran's blood pressure as 160/94. The Veteran reported that he had been treated for hypertension for 32 years. In June 2008 the Veteran was seen for a checkup and his blood pressure was 156/90. A VA treatment record from August 2008 noted the Veteran's blood pressure was still too high, at 151/101, and his hypertension medication was adjusted accordingly. The Veteran was seen for a follow up of his hypertension in June 2010 and a VA treatment record noted his blood pressure was 130/85. Most recently, a physical examination from March 2011 noted the Veteran's blood pressure was 131/78. There is no opinion in any of these treatment records that the Veteran's hypertension is related to service. At his June 2011 Board hearing the Veteran testified that he was diagnosed with hypertension in 2007 at the VA Medical Center. He testified that although he was not diagnosed until 2007 when he felt agitated he could feel his blood pressure rising. He also testified that his current medications kept his blood pressure under control. He testified that he gets agitated at work which causes his blood pressure to rise. There is no competent medical evidence in the file regarding the relationship between the Veteran's current hypertension and service. As noted above, the first indication of a disability was not identified until 2007, approximately 32 years after service discharge. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (noting that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against a claim). The Board acknowledges that there have been blood pressure readings which indicate that the Veteran had diastolic blood pressure predominantly 90 mm or greater. See e.g., May 2007 and June 2008 VA treatment records. However, under Diagnostic Code 7101 hypertension must be confirmed by readings taken 2 or more times on at least 3 different days. The Veteran's blood pressure readings were not taken 2 or more times on any given day to meet this requirement. The Board notes that hypertension was also not diagnosed within the one year presumptive period after service. See 38 C.F.R. §§ 3.307, 3.309. In this regard, the Veteran testified, and the records reflect, that he was first diagnosed with hypertension in 2007. As such, the Veteran's hypertension cannot be granted on a presumptive basis. To the extent that the Veteran contends that his current hypertension is related to his military service, it is now well established that lay persons without medical training, such as the Veteran, are not competent to comment on medical matters such as date of onset or cause of a disability. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(a)(1) (finding that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The statements offered in support of his claim are not competent medical evidence and do not serve to establish a medical nexus. In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he could feel his blood pressure rising when he gets agitated. See Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. However, upon review of the claims folders, the Board finds that the assertions that the Veteran has had this problem since service are not credible. In this regard, the Veteran's contentions are contrary to what is found in the post-service medical records which is negative for complaints, diagnoses, or treatment for hypertension until 32 years after separation from military service. In sum, a preponderance of the competent probative evidence of record weighs against the Veteran's assertion that his hypertension is related to service. The Veteran was first diagnosed with hypertension in 2007 and there are no medical opinions that his hypertension is related to service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for hypertension on a direct and presumptive basis and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER The appeal for entitlement to service connection for sleep apnea is dismissed. The appeal for entitlement to service connection for glaucoma is dismissed. Entitlement to service connection for hypertension is denied. REMAND The Veteran contends that he is entitled to an initial compensable evaluation for his bilateral hearing loss disability. The Board observes that the Veteran's most recent VA audiological examination was in September 2008. For increased rating claims, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). At his June 2011 Board hearing, the Veteran testified that his bilateral hearing loss disability had worsened since the September 2008 VA examination. As such, the Board finds that a new VA examination is therefore warranted. See 38 C.F.R. § 3.159 (2010); see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Board notes that the Veteran was seen in August 2010 for an audiological examination to determine the severity of his bilateral hearing loss disability. While audiological testing was conducted, it is unclear what the results were as they were not specifically labeled as to the left and right ears. The Board observes that the Veteran reported he did not suffer from tinnitus at the January 2008 VA examination, but did report it at the September 2008 VA examination. The examiner determined it was not related to service, but did not give an opinion as to whether it could be related to the Veteran's bilateral hearing loss disability. At the June 2011 Board hearing he also testified that he began experiencing tinnitus 3-4 years earlier and it caused intermittent ringing in his ears approximately once a month. As such, the claim should be remanded. Also, under the Veterans Claims Assistance Act (VCAA) the VA must notify claimants seeking VA benefits what information or evidence is needed in order to substantiate a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. § 3.159 (2011); see Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III). In this case, the Veteran should be provided notice on how to substantiate a claim for an increased evaluation. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with amended VCAA notice of how to substantiate a claim for an increased evaluation. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); see also Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III). 2. Schedule the Veteran for an examination in order to determine the current level of severity of his service-connected bilateral hearing loss disability and whether the Veteran's tinnitus can be service-connected. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. All studies deemed appropriate in the examiner's medical opinion should be performed, and all findings should be set forth in detail. The examiner should specifically comment on the impact of the Veteran's bilateral hearing loss upon his social and industrial activities, including his employability. The examiner should also specifically comment on whether it is at least as likely as not that any tinnitus is related to service, or was caused or chronically worsened by any hearing loss disability. 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2011). 4. After the above development is completed and any other development that may be warranted, readjudicate the claims. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs