Citation Nr: 1308191 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-11 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to October 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The decision below addresses the claim of entitlement to service connection for hypertension. The remaining claims are addressed in the remand that follows the decision below. FINDING OF FACT Hypertension pre-existed the Veteran's service and did not increase in severity as a result of service. CONCLUSION OF LAW Hypertension was not incurred or aggravated in service. 38 U.S.C.A. §§ 1111, 1131, 1153, 5103-5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107. To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). All notification action needed to make a decision has been accomplished regarding the claim for service connection for hypertension. Through a January 2008 notice letter (issued prior to the rating decision on appeal), the Veteran was notified of the information and evidence needed to substantiate his claim, including the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The identified notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the Veteran was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his claimed disability. Consequently, a remand of this issue for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with this issue. The Veteran's service treatment and personnel records have been obtained and associated with the claims file, as have all identified and available post-service treatment records. The Veteran was not afforded a VA examination with respect to this claim; however, hypertension was documented on his entrance examination, rebutting the presumption of soundness. 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.304(b). Therefore, the salient issue is whether there was an increase in disability during service. 38 C.F.R. § 3.306. There is no indication that the Veteran was treated for hypertension or any complications of hypertension during service, and his blood pressure reading upon discharge from service was normal. The Veteran has not stated that he was treated for symptoms of elevated blood pressure during service, or within the first post-service year. The earliest documentation of treatment for hypertension is dated in 1992, well after the Veteran's discharge from service. Thus, the evidence is against a finding that the Veteran's pre-existing hypertension was aggravated as a result of his service. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. 5103A(a)(2). The Board finds that VA has properly assisted the Veteran in obtaining any relevant evidence. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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 service, 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). Service connection will also be presumed for certain chronic diseases, including hypertension, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). A veteran is afforded a presumption of sound condition upon entry into service, except for any defects noted at the time of entry examination. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). That presumption can be rebutted by clear and unmistakable evidence that a disability existed prior to service and was not aggravated by service. See Monroe v. Brown, 4 Vet. App. 513, 515 (1993); Green v. Derwinski, 1 Vet. App. 320, 322 (1991); 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Analysis Elevated blood pressure was noted on the Veteran's June 1976 entrance examination. The examiner diagnosed undocumented hypertension that was not disqualifying. Because hypertension was noted on the Veteran's entrance examination, the presumption of soundness does not attach. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Veteran was not treated for elevated blood pressure, hypertension or any complications of hypertension during service. His blood pressure reading upon discharge was 120/70, well within normal limits. There is no evidence of post-service treatment for hypertension until 1992, well after his separation and significantly outside the one-year presumptive period following his discharge from active military service. Moreover, the Veteran does not contend that he was treated for hypertension or any complications of the disorder during service or for many years after his discharge. On review, the Board finds that service connection for hypertension is not warranted. The evidence does not reflect that the Veteran's pre-existing hypertension underwent an increase in severity during service. There were no complaints or documentation of elevated blood pressure, hypertension or complications of hypertension during service, nor does the Veteran's separation examination show that his blood pressure readings were more severe than those noted at service entry. In fact, his blood pressure readings were normal upon discharge from service, reflecting an improvement in the condition. There is no record of treatment for hypertension until 1992, and the Veteran does not contend that he was treated for hypertension either during service or immediately after service. The evidence is against a finding that the Veteran's pre-existing hypertension underwent an increase in severity during active service. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Service connection for hypertension is not warranted. ORDER Entitlement to service connection for hypertension is denied. REMAND On VA audiological examination in May 2008, the Veteran stated that his tinnitus had first begun after service. The examiner stated that there was no documentation of an onset of tinnitus in service or within a "reasonable" time post active duty service. Therefore, it was the opinion of the examiner that the Veteran's reported tinnitus was less likely as not caused by or related to military noise exposure or being a rifleman in military service. In September 2008, however, the Veteran submitted a private etiology opinion linking his tinnitus and hearing loss symptoms to in-service exposure to small arms fire. In addition, since the Veteran was last examined, he has consistently reported that his tinnitus began during service. The Veteran is competent to testify as to the onset and frequency of symptoms of tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002); see also Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). In April 2009, the Veteran submitted a statement alleging that he believed his current hearing loss and tinnitus problems were related to the treatment for impacted cerumen he underwent in service. Although the May 2008 VA examiner notes the January 1978 service treatment record showing treatment for impacted cerumen in both ears, he does not address the Veteran's contentions that this incident is related to his current hearing loss and tinnitus. The Veteran's hearing was evaluated at the VA Medical Center (VAMC) in San Diego, California, in January 2008, June 2009, February 2010, and April 2010. Although some degree of hearing loss was observed, audiograms were not included in the clinical notes. Additionally, the February 2010 and April 2010 evaluations reflected significantly decreased word recognition scores. The February 2010 record notes that this was "a common trend when using recorded speech instead of monitored live voice" and that the decreased word recognition scores were "not considered a significant finding"; however, no such notation was made in April 2010, nor is it evident that the Maryland CNC word test was used on either occasion. Impaired hearing is considered a disability for VA purposes 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. The evidence of record does not presently establish that the Veteran's hearing loss is currently a disability for VA compensation purposes, although it is unclear whether or not the Veteran currently has a hearing loss disability, given the missing audiograms and the lack of current medical evidence more recent than 2010 Thus, upon remand, the VAMC must be asked to provide all available audiograms not already of record, and to provide the Veteran with a current VA examination to address the etiology of his current hearing loss and tinnitus complaints. Accordingly, the case is REMANDED for the following action: 1. Contact the San Diego VAMC and ask that all available audiograms from the Veteran's hearing evaluations in January 2008, June 2009, February 2010, and April 2010, as well as any other audiograms not already of record, be provided for inclusion in the claims folder. If the information does not exist or is unavailable, a negative response must be obtained. The VAMC must also provide all available treatment records since May 2010. If these records do not exist or cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA audiology examination. The claims folder and a copy of this remand must be reviewed by the examiner. The examiner must review all relevant evidence of record, including the Veteran's statements concerning onset of tinnitus and hearing loss during service and his impacted cerumen noted in January 1978, as well as the September 2008 statement from a private physician as to the etiology of his tinnitus and hearing loss, and state whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's tinnitus and/or hearing loss (if a current hearing loss disability is diagnosed on examination) was incurred during service. The examiner is advised that the Veteran is competent to report the onset and frequency of symptoms of tinnitus. The examiner is asked to cite to the record and/or medical authority to support the opinion. If the examiner determines that he cannot provide the clarifying opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs