Citation Nr: 1301669 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 98-08 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1971. These matters initially came before the Board of Veterans' Appeals (Board) from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, the RO denied the Veteran's petition to reopen claims of service connection for left inner ear problems and hypertension. In June 1998 and January 2004, the Veteran requested a Board hearing before a Veterans Law Judge at the RO. In February 2004, he withdrew his hearing requests. In March 2003, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO and a transcript of that hearing has been associated with his claims folder. In June 2005, the Board remanded the issues of whether new and material evidence had been submitted with respect to the claims of service connection for left ear hearing loss and hypertension for further development. In April 2007, the Board granted the Veteran's petition to reopen the claims of service connection for left ear hearing loss and hypertension and remanded the underlying claims for further development. In November 2009, the Board denied the claims of service connection for left ear hearing loss and hypertension. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In a July 2011 memorandum decision, the Court vacated the Board's November 2009 decision, in part, and remanded the case for readjudication in compliance with directives specified in the Court's decision. In March 2012, the Board remanded these matters for further development in compliance with the Court's decision. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and considered as part of this appeal. The issue of entitlement to service connection for left ear 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. FINDING OF FACT Hypertension did not have its clinical onset in service and is not otherwise related to active duty; it was not exhibited within the first post service year, and is not etiologically related to a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred or aggravated in service; it may not be presumed to have been incurred therein; and it is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a), 3.310, 4.104, Diagnostic Code (DC) 7101, Note (1) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a September 2007 letter, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for hypertension on both a direct and secondary basis. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The claimant's Veteran status has been substantiated. He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claim, in the September 2007 letter. There was a timing deficiency in that the September 2007 letter was sent after the initial adjudication of the claim of service connection for hypertension. This timing deficiency was cured by readjudication of the claim in a May 2009 supplemental statement of the case (SSOC). Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's March 2003 hearing, the DRO identified the issues on appeal at that time (including whether new and material evidence had been received with respect to the claim of service connection for hypertension), informed the Veteran of the information and evidence required to substantiate a claim of service connection, and specifically informed him that evidence of a relationship between his claimed hypertension and service was needed to substantiate his claim on a direct basis. Further, the Veteran provided testimony as to the symptoms and history of his hypertension and the treatment provided for the disability, thereby demonstrating actual knowledge of the ability to identify and submit additional relevant evidence. The duties imposed by Bryant were thereby met. VA obtained the Veteran's service treatment records, pertinent service personnel records, Social Security Administration (SSA) disability records, all of the identified relevant post-service VA treatment records, and some of the identified relevant post-service private medical records. In addition, the Veteran was afforded VA examinations to obtain opinions as to the etiology of his hypertension. In its June 2005, April 2007, and March 2012 remands, the Board instructed the agency of original jurisdiction (AOJ) to, among other things: send the Veteran a VCAA notice letter pertaining to the information and evidence required to substantiate his claims of service connection; ask the Veteran to identify any private medical treatment for hypertension; attempt to obtain any sufficiently identified private treatment records; obtain the Veteran's SSA disability records; obtain all VA treatment records dated since April 2008; and afford the Veteran VA examinations to obtain opinions as to the etiology of his current hypertension. As explained above, all relevant post-service VA treatment records and SSA disability records have been obtained and associated with the Veteran's claims file. He was notified of the information and evidence required to substantiate his service connection claim in the September 2007 letter, was asked to identify any private medical treatment for his claimed disability in a March 2012 letter, and was asked to complete the appropriate release forms so as to allow VA to obtain any identified private treatment records. Further, he was afforded VA examinations in June 2008 and March 2012 and opinions were obtained as to the etiology of his current hypertension. In response to the March 2012 letter, the Veteran submitted a signed and completed "Authorization and Consent to Release Information" form (VA Form 21-4142) for treatment provided from Dr. Austin at Mississippi Ear, Nose, and Throat Clinic (Mississippi ENT). In April 2012, the AOJ sent a letter to this treatment provider and requested copies of all available treatment records. In May 2012, the AOJ contacted Mississippi ENT by telephone and was informed that it did not have any records of treatment provided to the Veteran. Thus, the Board finds that any further efforts to obtain treatment records from Mississippi ENT would be futile. 38 C.F.R. § 3.159(c)(2). The Veteran was notified in an SSOC dated in November 2012 of the efforts that had been undertaken to obtain treatment records from Mississippi ENT, that no treatment records were available from that facility, and that his claim could be returned to the Board and decided based on the evidence of record if he did not provide any further information within 30 days from the date of mailing of the SSOC. Also, he had been informed to submit any relevant evidence in his possession in the March 2012 letter. Thus, the AOJ substantially complied with all of the Board's relevant June 2005, April 2007, and March 2012 remand instructions and VA has no further duty to attempt to obtain any additional records or conduct additional examinations with respect to the claim of service connection for hypertension. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. VA has amended 38 C.F.R. § 3.310 to reflect that it will not concede aggravation unless certain additional conditions are met. 38 C.F.R. § 3.310(b). As explained below, the Board finds that there is no competent evidence that a service-connected disability caused or aggravated the Veteran's current hypertension. Hence, it is not necessary to determine which version of 38 C.F.R. § 3.310 is applicable in this case. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hypertension, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater and isolated systolic hypertension means systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of 90 mm. 38 C.F.R. § 4.104, DC 7101, Note (1). In this case, medical records, including a March 2012 VA examination report, reflect diagnoses of hypertension. Also, an October 2000 VA urgent care treatment note, a February 2001 VA primary care treatment note, and a June 2008 VA examination report reveal elevated blood pressure readings (154/98, 152/92, and 132/90, respectively). Thus, current hypertension has been demonstrated. The Veteran does not contend, and the evidence does not otherwise reflect, that his hypertension is directly related to service. Specifically, he has not reported, and the evidence does not otherwise indicate, a continuity of symptomatology with regard to his hypertension. There is no evidence of any complaints of or treatment for hypertension in his service treatment records and there were no elevated blood pressure readings (as defined in 38 C.F.R. § 4.104, DC 7101, Note (1)) recorded during service. Further, his February 1971 separation examination was normal and a blood pressure reading of 120/86 was recorded at the time of separation. If a chronic disease, such as hypertension, is shown in service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). There must, however, be sufficient observations in service to identify the disease entity. Id. As discussed above, there is no evidence showing any diagnosed hypertension in service, and the Veteran has not reported any hypertension in service. Hence, service connection cannot be granted on this basis here. The objective evidence otherwise indicates that the Veteran's current hypertension did not manifest until years after service. The first post-service clinical evidence of hypertension is a private treatment record dated in October 1987 which includes a report of an approximately one year history of medication use for hypertension. A blood pressure reading of 110/78 was recorded and the Veteran was diagnosed as having a history of possible hypertension (the status and significance of which was undetermined). Moreover, the earliest reported onset of hypertension is reflected in a June 1989 VA examination report which includes a report of an 8 year history of hypertension (i.e. since approximately 1981). There is no lay or clinical evidence of any earlier hypertension following service. The absence of any evidence of hypertension for approximately a decade after service weighs the evidence against a finding that the Veteran's current hypertension was present in service or in the year or years immediately after service. Thus, neither the clinical record nor the Veteran's own statements establish a continuity of symptomatology in this case, precluding an award of service connection on this basis. The Veteran primarily contends that his hypertension is related to his service-connected PTSD. However, the only adequate medical opinion of record reflects that no such relationship exists. The physician who conducted the June 2008 VA examination opined that a conclusion as to whether the Veteran's stress related to his PTSD was the cause of his hypertension would require resorting to speculation. He reasoned that the hypertension was most likely essential in nature and that it was well controlled. Although stress could elevate blood pressure episodically and there had been speculation that stress may play a role in developing hypertension, such a relationship had not been definitively established. As explained by the Court in its July 2011 decision and by the Board in its March 2012 remand, the June 2008 opinion is inadequate to the extent that was limited to whether the Veteran's hypertension was caused by his service-connected PTSD and did not address any possible aggravation. Thus, the Veteran was afforded a new VA examination for his hypertension in March 2012. The March 2012 VA examination report includes an opinion that it was not likely ("less likely as not") that the Veteran's hypertension was caused by, a result of, or had undergone a permanent increase due to his service-connected PTSD. This opinion was based on the fact that there was no medical documentation to support the etiology of his hypertension as being due to PTSD. A review of his medical records revealed no evidence of any elevated blood pressure or incapacitating episodes related to PTSD in the previous 2 years. He had not complained of any hypertensive symptoms during mental health visits and his blood pressure was recorded as 147/75 at the time of a January 2012 VA primary care evaluation. Additionally, there was documented evidence of asymptomatic hypotension during a June 2011 VA primary care evaluation, at which time a blood pressure reading of 92/52 was recorded and his medication (Atenolol) was decreased. The June 2008 opinion is adequate to the extent that it is accompanied by a specific rationale addressing why a definitive conclusion as to whether the Veteran's hypertension was caused by his service-connected PTSD could not be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the examiner stated that an opinion could not be provided without resort to speculation and this statement weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). However, the March 2012 opinion as to whether the hypertension was caused or aggravated by the service-connected PTSD was based upon examination of the Veteran and a review of his medical records and reported history and is accompanied by a specific rationale that is not inconsistent with the evidence of record. Thus, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Veteran has expressed his belief that his current hypertension is related to his service-connected PTSD. However, as a lay person, he can only comment as to symptoms and immediately-observable relationships. He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his hypertension is related to his service-connected PTSD, as opposed to some other cause. Rather, it would require medical expertise to evaluate the hypertension, consider all the potential causes, and determine that one was a more likely cause than another. Hence, the Veteran's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2) (2012). Although the Veteran has received treatment from medical professionals for his hypertension, none have attributed this disability to any disease or injury in service or a service-connected disability. Rather, the only adequate medical opinion of record reflects that no relationship exists between the hypertension and the service-connected PTSD. There is no other evidence of a relationship between the Veteran's current hypertension and service or a service-connected disability, and neither the Veteran nor his representative have alluded to the existence of any such evidence. The Board does acknowledge that, in its December 2012 statement, the Veteran's representative referenced medical literature pertaining to a possible relationship between hypertension and PTSD. However, generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case, does not provide competent evidence to satisfy the nexus element for an award of service connection. See Sacks v. West, 11 Vet. App. 314 (1998). In this case, no medical professional has specifically related any such information contained in medical literature to the Veteran. Also, as discussed above, the record fails to demonstrate any evidence of a continuity of symptomatology with respect to the Veteran's hypertension. Thus, the preponderance of the evidence is against a finding that the Veteran's current hypertension is related to service, manifested in service, manifested within a year after his February 1971 separation from service, or was caused or aggravated by a service-connected disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim of service connection for hypertension must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for hypertension is denied. REMAND Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran contends that he has left ear hearing loss which is related to exposure to loud noises in service associated with military weaponry and aircraft. He was afforded a VA audiological examination in March 2012 and was diagnosed as having left ear hearing loss as defined by VA. See 38 C.F.R. § 3.385 (2012). The audiologist who conducted the examination opined that the Veteran's left ear hearing loss was not likely (not "at least as likely as not (50 percent probability or greater)") caused by or a result of service, but was most likely caused by a labyrinthectomy that had been conducted in 1993. No further explanation or reasoning was provided with respect to the left ear hearing loss. The March 2012 opinion is inadequate because it is not accompanied by any specific explanation or reasoning. See Nieves-Rodriguez, 22 Vet. App. at 304. Moreover, the opinion that the Veteran's left ear hearing loss was likely caused by a labyrinthectomy in 1993, without further explanation, does not account for the fact that left ear hearing loss as defined in 38 C.F.R. § 3.385 was suggested on audiometric testing as early as September 1986 during an audiology examination at Ear, Nose, and Throat Surgical Group, P.A. While inner ear problems were being treated in the mid to late 1980s, the labyrinthectomy did not occur until much later. In light of these inadequacies, a remand is necessary to obtain a new opinion as to the etiology of the Veteran's current left ear hearing loss. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, the case is REMANDED for the following action: 1. Ask the examiner who conducted the March 2012 VA audiological examination to review the claims file, including this remand and any relevant records contained in the Virtual VA system, and provide an opinion as to the etiology of the Veteran's current left ear hearing loss. The opinion provider should answer the following question: Is it at least as likely as not (50 percent probability or more) that the Veteran's current left ear hearing loss had its onset in service (in whole or in part), is related to his noise exposure in service (in whole or in part), or is otherwise the result of a disease or injury in service (in whole or in part)? In formulating the above opinion, the opinion provider should acknowledge and comment on the audiometric testing in September 1986, the Veteran's reports of noise exposure in service, the treatment for inner ear problems in the mid to late 1980s, and the August 2008 opinion of a VA physician pertaining to the etiology of the Veteran's left ear hearing loss. For purposes of the above opinion, the Veteran's reports of noise exposure in service should be presumed to be accurate. The opinion provider must provide reasons for each opinion given. If the March 2012 examiner is unavailable or otherwise unable to provide the requested opinion, the Veteran should be afforded a new VA examination to obtain the necessary opinion. 2. The AOJ should review the opinion/examination report to ensure that it contains the information and opinion requested in this remand and is otherwise complete. 3. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs