Citation Nr: 1215831 Decision Date: 05/02/12 Archive Date: 05/10/12 DOCKET NO. 06-35 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for Meniere's syndrome. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from October 1978 to April 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2005 and June 2005 rating decisions rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran perfected an appeal of these rating decisions. In April 2009, the Board remanded the appeal for additional development. After the development was completed, the Board denied the appeal in a November 2009 decision. In December 2009, the Veteran requested reconsideration of the November 2009 Board decision, pursuant to 38 C.F.R. § 20.1000 and 20.1001. In September 2010, the Board vacated its November 2009 decision and remanded the claim for further development. The requested development has been completed and the case has been returned for appellate consideration. Following the last Supplemental Statement of the Case issued in September 2010, the Veteran submitted additional evidence, for which he waived initial RO review and consideration. In light of the waiver, the Board may properly consider the evidence in this review. See 38 C.F.R. § 20.1304 (2011). FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, Meniere's syndrome, also claimed as vertigo, is related to military service. 2. The persuasive evidence shows that essential hypertension did not manifest in service or within one year of discharge, and is not related to military service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, Meniere's syndrome, also claimed as vertigo, was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). 2. Hypertension was not incurred in or aggravated by his active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in August 2004 prior to the initial rating decision. An additional notice letter sent in November 2006 included notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the recent holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). The case was thereafter readjudicated by way of a various supplemental statements of the case, the most recent of which was issued in September 2010. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained his service treatment records and VA and private treatment records. The Veteran was also provided with VA examinations. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board is satisfied that the VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. Finally, this case was remanded for further development in April 2009. There has been substantial, if not full, compliance with the remand directives. Analysis The Veteran seeks service connection for Meniere's syndrome/vertigo and hypertension. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomalogy. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2010); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303. Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). The minimum compensable disability rating (of 10 percent) for hypertension requires diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more; or if a claimant has a history of diastolic pressure of predominantly 100 or more and requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (2011). Hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension is defined as systolic blood pressure that is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. To support a diagnosis of hypertension, the blood pressure readings must be taken two or more times on at least three different days. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 4.104, DC 7101(Note 1) (2011). A. Meniere's syndrome/vertigo Meniere's syndrome/vertigo was not diagnosed during service. Service treatment records reflect that the Veteran complained of a right ear ache and swollen ear in October 1979. He was treated for a right ear ache with cold symptoms in September 1981 and was diagnosed with an upper respiratory infection with sinusitis. A March 1982 treatment record shows that he complained of fluid in his right ear for four days duration, unaccompanied by any other symptom but decreased hearing. He was diagnosed with right external otitis. The Veteran declined a separation examination. Post-service private medical records dated from August 1999 to December 2004 reflect that the Veteran received intermittent treatment for vertigo. The Veteran was afforded a VA examination in June 2009. During the examination, he reported that the onset of his vertigo was in 1999. After examining the Veteran and reviewing the claims file, the examiner opined that the Veteran's Meniere's syndrome/vertigo was not related to service, nor was it caused by treatment for his right ear condition in service. The examiner explained that during service, the Veteran was only seen and treated for acute infections of the ear that were treated and resolved with no residuals. There were no vertigo complaints. The examiner added that such acute infections do not cause Meniere's syndrome/vertigo, as per the medical literature cited in the examination report. In a June 2009 opinion, a private clinician, Dr. Bash noted that during service the Veteran had participated in approximately 30 boxing matches over a three-year period with numerous additional practice-boxing spars. Dr. Based opined that the Veteran's current Meniere's disease is caused by the many boxing matches in service. His rationale was that it is well known in [medical] literature that boxing causes brain trauma and it is also well known that brain trauma and inner ear trauma go hand in hand. In correspondence received in September 2011, Dr. Bash reiterated his previous opinion and further cited a scientific article that documented abnormal vestibular function in patients with head trauma. Dr. Bash stated that such abnormal function is consistent with the Veteran's signs and symptoms of Meniere's syndrome/vertigo. In respective opinions provided in September 2010 and October 2011, the VA examiner and Dr. Bash each reviewed the other's medical opinion and then reaffirmed their prior opinions regarding the etiology of the Veteran's current Meniere's syndrome/vertigo. Based on the evidentiary record, and resolving all doubt in favor of the Veteran, the Board finds that service connection for Meniere's syndrome/vertigo is warranted. In reaching this conclusion, the Board observes that the evidence is in relative equipoise as to the question of whether the Veteran's Meniere's syndrome/vertigo had onset in service, or is etiologically related to service. The Board has carefully reviewed the opinions and finds that they are both competent and probative as each opinion was based on a clinical examination, review of the Veteran's history, and supported with rationales and medical journal. A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Reasonable doubt is therefore resolved in favor of the Veteran and service connection for Meniere's syndrome/vertigo is warranted. 38 U.S.C.A. § 5107(b). B. Hypertension Service treatment records are negative for a diagnosis of hypertension. These records show that the Veteran had elevated blood pressure readings of 140/90 and 142/98, in May and December 1984. He declined a separation examination. Post-service VA and private medical records dated from August 1985 to December 2004 show that the Veteran received intermittent treatment for severe malignant hypertension after service. The earliest diagnosis of hypertension in the record is shown in a March 1999 private medical record. However, on an August 1990 health care provider certification form, the Veteran's private physician indicated that the Veteran had had severe hypertension since the 1990's. The Veteran was afforded a VA examination in June 2009. After examining the Veteran and reviewing the claims file, the examiner provided a current diagnosis of hypertension. The examiner opined that the current hypertension disorder was not related to service. The rationale was that there was no treatment for essential hypertension, or any such diagnosis, in service or within a year of discharge. The examiner explained that the only noted elevated blood pressure reading was on May 12, 1984, and this occurred with an acute puncture wound. The examiner explained that the acute injury caused that elevated blood pressure reading. The private medical records from 1985 to 1993 did not document any diagnosis of hypertension, and another elevated blood pressure reading in 1985 was with an acute stab wound only. That injury was also acute in nature and resulted in elevated blood pressure, but not a diagnosis of hypertension. The Veteran was not treated for hypertension until 1994, many years after discharge from service. In an opinion provided in October 2009, Dr. Bash indicated that the Veteran had many elevated blood pressure readings in service at the 142/98 level and 140/90 in 1984. He opined that the Veteran had hypertension (diastolic and systolic) in service and stated that this finding was apparent from the above record. He further indicated that the hypertension is related to service, as the Veteran's records do not support another etiology. In September 2010, after reviewing Dr. Bash's opinion, the VA examiner reaffirmed her conclusion that the Veteran's hypertension was not caused by or related to his military service. The examiner's clinical rationale was identical to that provided in June 2009. Thereafter, in November 2011, Dr. Bash submitted a nearly identical opinion to the one he provided in October 2009. Based on the record, the Board finds that service connection is not warranted for hypertension. The evidence clearly establishes that the Veteran has a current diagnosis of hypertension. Thus, the dispositive issue in this case is whether there is a nexus between hypertension and military service. At the outset, the Board finds that hypertension may not be presumed to have been incurred during military service in this case because it was not diagnosed during service or within one year of discharge. See 38 C.F.R. § 3.307, 3.309. As noted, VA requires that blood pressure readings must be taken two or more times on at least three different days to support a diagnosis of hypertension. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 4.104, DC 7101(Note 1) (2011). Based on this criteria, and in addition to the lack of treatment or diagnoses of hypertension in the service records, there is no evidence of hypertension having manifested in service. The Board further, finds that although the cumulative VA and private medical treatment records reflect long-standing treatment for hypertension, these records fail to demonstrate an etiological relationship between the currently manifested hypertension and the Veteran's military service. The only evidence specifically pertaining to the question of causal nexus are the competing opinions provided by the VA examiner and Dr. Bash. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. After careful consideration, the Board finds the VA examiner's opinion, that the Veteran's current hypertension is not etiologically related to military service, to be both competent, and the most persuasive on the question of nexus, as it reflects a comprehensive analysis of the pertinent evidence and is otherwise supported by the evidence of record. Dr. Bash's opinion is found to be less persuasive as it fails to address the fact that the only elevated blood pressure readings in service (and within one year of discharge) were noted only in connection with incidents of acute trauma. Further the Board finds that Dr. Bash's opinion is internally inconsistent. Dr. Bash pointed to two elevated blood pressure readings taken on the same day in May 1984 to show that hypertension existed in service; however, he also noted that a person is not diagnosed with hypertension unless their blood pressure is persistently high at two office visits at least one week apart, because many people are anxious when seeing a doctor or nurse. Thus, by Dr. Bash's own explanation, the Veteran's two isolated elevated blood pressure readings noted in May 1984 would not in fact support a diagnosis of hypertension. In sum, the Board finds that the criteria for establishing service connection for hypertension have not been met. The benefit-of-the-doubt doctrine has been considered; however, as the preponderance of the evidence is against the Veteran's claim it is not applicable. See 38 U.S.C.A. § 5107(b). Service connection for hypertension is denied. ORDER Service connection for Meniere's syndrome/vertigo is granted. Service connection for hypertension is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs