Citation Nr: 1300689 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-15 499 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to October 1965. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The case was then transferred to the jurisdiction of the RO in Phoenix, Arizona. A hearing was held in December 2009 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board subsequently remanded the case for further development in May 2010, December 2010, and April 2011. The case has since been returned to the Board for appellate review. The issue of entitlement to service connection for bilateral hearing loss 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 failed to appear for laboratory testing that was ordered in conjunction with a May 2011 VA examination. 2. The evidence of record does not show that the Veteran's current hypertension manifested in service or within one year thereafter or that it is otherwise related to his military service or a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110 , 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309, 3.310, 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in June 2006, prior to the rating decision at issue. That letter informed him of the evidence needed to substantiate his claim and of the division of responsibilities in obtaining such evidence. The June 2006 letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any outstanding records that are pertinent to the claim being decided herein. He was also provided the opportunity to testify at a hearing before the Board, and a transcript of that proceeding is associated with the claims file. In addition, the Veteran was afforded VA examinations in July 2006, November 2008, June 2010, and May 2011. The most recent examination was provided following a Board remand to ensure that an adequate medical opinion was obtained in this case. However, as discussed below, the Veteran failed to appear for the laboratory testing that was ordered in conjunction with that examination. According to 38 C.F.R. § 3.655, in an original compensation claim, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be rated based on the evidence of record. The Veteran and his representative are expected to cooperate in the efforts to adjudicate a claim, and their failure to do so subjects them to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Law and Analysis 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, 1131. 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 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). Service connection for certain diseases, such as cardiovascular-renal disease, may be also be established on a presumptive basis 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 C.F.R. §§ 3.307(a)(3), 3.309(a). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). W here a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for hypertension. The Veteran's service treatment records show normal blood pressure at the time of his entrance into service (126/80) and at the time of his separation (120/62). There are no records of the Veteran's blood pressure in the year after service. Current treatment records show hypertension. The Veteran was provided a VA examination in July 2006 at which time he provided a history of hypertension for many years. The examiner noted that the Veteran had essential hypertension and opined that it was not related to his diabetes; however, she did not provide a rationale for her conclusion. The Veteran afforded another VA examination in November 2008. The examiner opined that his hypertension was not related to his diabetes mellitus because it had preceded the onset of diabetes by many years; however, the examiner did not discuss whether the Veteran's service-connected diabetes mellitus may have aggravated his hypertension. In June 2010, the Veteran was reexamined. At that time, the examiner opined that the Veteran's hypertension was not caused or aggravated by his diabetes mellitus, but he did not provide a rationale for his conclusion. In May 2011, the Veteran was provided an additional VA examination, but the examiner refrained from providing an opinion concerning the etiology of the Veteran's hypertension pending laboratory results. In a June 2012 addendum, the examiner wrote, "The Veteran was called and told the importance of having the lab tests, the Veteran no showed his labs and I cannot make a determination without these labs." When entitlement to a VA benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant without good cause fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. In this case, good cause was not shown insofar as the Veteran did not provide any reason why he failed to appear for his laboratory tests. The Veteran's representative argued that it was possible that the Veteran never received notice of the laboratory testing because no examination notice was contained in the claims file. However, the VA examiner specifically noted that he called the Veteran and explained the importance of the lab tests. Moreover, a presumption of regularity applies to the actions of government officials, and this includes the provision of appropriate examination notifications. Kyhn v. Shinseki, 24 Vet. App. 228, 233-235 (2011). The claim must be adjudicated on the basis of the evidence of record. The competent and credible evidence does not show that the Veteran's current hypertension manifested in service or within one year thereafter. Indeed, the service treatment records document him as having normal blood pressure, and there is no evidence pertaining to his blood pressure in the year following his military service. Moreover, there is no event, disease, or injury in service to which his current diagnosis could be related. In addition, the evidence weighs against a finding that his hypertension is related to his service-connected type II diabetes mellitus. The Veteran has been afforded multiple VA examinations, and the July 2006, November 2008, and June 2010 VA examiners provided negative nexus opinions. In an effort to ensure that there was a fully adequate opinion with a complete rationale, the Veteran was provided an additional VA examination in May 2011, yet he failed to report for testing that would have aided the examiner in rendering an opinion. That testing and resulting opinion may have provided evidence to support his claim, but due to his failure to report, the claim must be adjudicated based on the available evidence of record. The Veteran lacks the necessary training and expertise that is required in order for him to render a competent medical opinion as to the complex issue of whether there is a relationship between his hypertension and diabetes mellitus. Thus, the available competent and credible evidence weighs against the claim. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, service connection for hypertension is denied. ORDER Service connection for hypertension is denied. REMAND The issue of entitlement to service connection for bilateral hearing loss has been the subject of several prior remands. The gravamen of these prior remands was that the examiner should explain the significance, if any, of a shift in the Veteran's auditory thresholds during service, although he still had normal hearing at discharge. In a January 2011 addendum, a VA examiner referred to this shift as insignificant, but did not explain the basis for her conclusion. In a July 2012 follow-up email, the examiner indicated that the Veteran's hearing had actually improved between enlistment and separation. However, review of the service treatment records shows this is not the case. The Veteran's auditory acuity decreased, although it remained within normal limits. Thus, there has not been compliance with the prior remand instructions insofar as no explanation for the significance, or lack thereof, of the change in auditory thresholds in service has been provided. Moreover, in July 2012, the examiner relied on inaccurate information when she related that the Veteran's hearing had improved during his period of service. Therefore, another remand is necessary both to ensure compliance with the prior remand instructions as well as to ensure that the examiner relies on accurate information in formulating her conclusions. Accordingly, the case is REMANDED for the following action: 1. The RO should refer the Veteran's claims folder to the January 2011 VA audiology examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current hearing loss that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should convert any audiometric results using ASA standards to ISO-ANSI standards in order to facilitate data comparison, and he or she should provide an interpretation of any audiometric findings contained on a graph. If an additional examination is deemed necessary to provide the requested opinion, such an examination should be scheduled. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The Veteran has contended that he had noise exposure in service. It should be noted that he did serve as a ballistics meteorological crewman, and he is competent to attest to factual matters of which he had first-hand knowledge. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current bilateral hearing loss is causally or etiologically related to his military service, including noise exposure. In so doing, the examiner should note that the Veteran did appear to have a slight decrease in his hearing during service even though he did not necessarily meet VA standards for hearing loss pursuant to 38 C.F.R. § 3.385. The Court has noted that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. The examiner should also discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. A clear rationale for all opinion would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. The RO/AMC should review the examination report to ensure that it is in complete compliance with this remand. In particular, the RO/AMC should ensure that the examiner discussed the threshold shift during the Veteran's military service. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 3. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Thereafter, if appropriate, the case should be returned to the Board for appellate disposition. 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs