Citation Nr: 1308972 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 09-08 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a respiratory disability, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Joyner, Counsel. INTRODUCTION The Veteran served on active duty from November 1963 to August 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to the benefits sought on appeal. The January 2007 rating decision also denied the Veteran's claims for entitlement to service connection for peripheral neuropathy of the upper extremities, diabetic retinopathy, and coronary artery disease. Although the Veteran filed a timely notice of disagreement and a statement of the case was issued in January 2009 on all seven issues, in his March 2009 VA Form 9 the Veteran appealed all issues except for service connection for diabetic retinopathy. In his VA Form 9 he specifically indicated that he was not pursuing his appeal of his claim of entitlement to service connection for diabetic retinopathy. In an October 2010 statement, prior to certification of the appeal to the Board, the RO received notification from the appellant that he desired to withdraw his appeal for service connection for peripheral neuropathy of the upper extremities. As such, those issues are not currently before the Board. Thereafter, in a September 2011 rating decision, the RO granted service connection for coronary artery disease. As this represents a total grant of that benefit sought on appeal, the issue of entitlement to service connection for coronary artery disease is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In July 2012 the Board requested an opinion from a physician with the Veterans Health Administration (VHA) regarding the Veteran's claim for service connection for hypertension. The requested opinion was provided in December 2012. The Veteran and his representative were provided copies of the opinions and accorded a 60-day period to reply pursuant to 38 C.F.R. § 20.903 (2012). The case has been returned to the Board for review. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and a respiratory 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. FINDING OF FACT The most probative competent evidence of record establishes that it is at least as likely as not that the Veteran's hypertension is aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW Hypertension is aggravated by service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002& Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.310(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The 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). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the decision below, the Board has granted the Veteran's claim for service connection for hypertension. Therefore, regardless of whether the VCAA duties to notify and assist have been met in this case with regard to his hypertension claim, no harm or prejudice to the appellant has resulted. As such, the Board concludes that the current laws and regulations have been complied with, and a defect, if any, in providing notice and assistance to the Veteran is at worst harmless error in that it does not adversely affect the essential fairness of the Board's adjudication of the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Legal Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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). Certain chronic diseases, such as cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 38 C.F.R. §§ 3.307, 3.309. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board observes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised regulation, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(b) (2012). This requirement was not contained in prior versions of the regulation. Cf. 38 C.F.R. § 3.310 (2006). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for hypertension. The Board notes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). However, as will be discussed below, the Board is granting the Veteran's claim under the theory of secondary service connection, and thus, the laws and regulations concerning direct service connection will not be discussed. In September 2006 the Veteran filed a claim for service connection for hypertension as secondary to his service-connected diabetes mellitus. Therefore, the Veteran's claim for secondary service connection was raised prior to October 2006. See 38 C.F.R. § 3.102 (2012). As such, the Board will apply the former, i.e., the more liberal version, of the regulation. The Veteran submitted an article in January 2008 which indicates that hypertension is related to diabetes mellitus. A December 2008 VA examination report notes that the Veteran's hypertension was diagnosed at about the same time as his diabetes. The examiner opined that it is less likely than not that the hypertension was caused by or aggravated by the diabetes mellitus. The examiner reasoned that there was no evidence of diabetic nephropathy, and no history of renal impairment. The examiner opined that it is more likely than not that the hypertension and diabetes mellitus are two separate pathophysiologic entities. A November 2010 VA examination report reflects that the Veteran's coronary artery disease is likely related to hypertension and possibly untreated diabetes mellitus. The December 2012 VHA opinion report reflects that it is at least as likely as not that the Veteran's hypertension is made worse by the service-connected diabetes mellitus. The examiner stated that the Veteran was diagnosed with diabetes mellitus and hypertension at about the same time. The Veteran does not have diabetic nephropathy, which can lead to hypertension. The examiner noted that there is no causal relationship known between uncomplicated diabetes and hypertension; they are coexisting conditions which do have some physiological interplay. Notably, patients with diabetes may have increased total body sodium, which may affect hypertension. Diabetes mellitus may also result in hyperinsulinemia, which promotes sodium retention and increases sympathetic tone. These in turn may increase blood pressure. Further, diabetes is associated with increased arterial stiffness, and decreased arterial compliance is associated with worse systolic hypertension. In considering whether secondary service connection is warranted, the Board notes that the December 2012 VHA opinion finds that it is at least as likely as not that the Veteran's hypertension is made worse by his service-connected diabetes mellitus. The Board acknowledges the December 2008 negative VA medical opinion. This opinion, however, is assigned little probative value as it is not supported by a clear rationale. Notably, the rationale for the opinion against the Veteran's claim is that he does not have diabetic nephropathy or history of renal impairment. However, the examiner did not explain why an absence of nephropathy rules out the possibility that diabetes mellitus aggravates hypertension. The Board notes that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, the Board concludes that the December 2008 medical opinion is of limited probative value. As set forth above, the record contains both positive and negative opinions regarding aggravation. In this regard, the Board finds the December 2012 VHA opinion to be the most probative opinion as to aggravation. The VHA examiner reviewed the claims file and provided an opinion with an adequate rationale. Thus, resolving any reasonable doubt in the Veteran's favor, his hypertension is aggravated by diabetes mellitus and service connection is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.310(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is granted. REMAND The Veteran claims that he is entitled to service connection for bilateral hearing loss disability and tinnitus because they were incurred during service. He stated that his military occupational specialty in service was ammunition and chemical specialist and demolition specialist, and was therefore exposed to hazardous noise. He further claims that he has experienced hearing loss and tinnitus ever since service. The report of an October 2006 VA examination reflects that the Veteran meets the criteria for his hearing loss to be considered a disability for VA purposes. 38 C.F.R. § 3.385 (2012). The examiner opined that it is not likely that either the Veteran's hearing loss or tinnitus is related to his military duty. The examiner reasoned that the Veteran's enlistment examination revealed normal hearing. The examiner further noted that the Veteran denied problems with hearing at separation and had no hearing problems on audiological testing at separation. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the absence of in-service evidence of a hearing loss disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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 (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the VA examiner found that the Veteran's hearing loss and tinnitus were not related to service because the Veteran had no hearing complaints at service separation and audiological testing at separation revealed no hearing problems. As noted above, the law does not necessarily require that hearing loss manifest in service. It would have been helpful if the examiner brought his expertise to bear in this manner regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause. Further, it is noted that the Director of the VA Compensation and Pension Service observed in Training Letter 10-02, issued in March 2010, that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified. Other known causes were listed, including Meniere's disease, a head injury, hypertension, medications, and dental disorders. Based on the foregoing, the Board finds that the Veteran's claims for service connection for bilateral hearing loss and tinnitus should be remanded and that, upon remand, the RO should send the claims file, to include a copy of this remand, to the October 2006 VA examiner, or suitable substitute, for the purpose of determining whether in-service noise exposure could cause the Veteran to progressively lose his hearing over the years. Hensley v. Brown, 5 Vet. App. 155 (1993). Additionally, the examiner should indicate whether the Veteran's tinnitus was caused by in-service noise exposure and/or is related to his bilateral hearing loss. With respect to the Veteran's claim for service connection for a respiratory disability, the Board notes that the Veteran claims that he was treated for a lung condition while serving in Vietnam. The service treatment records reflect that in August 1966 the Veteran was seen for a bad cough, and congested lungs. Several days later he was seen again for complications of the cough and congestion. He indicated that he was having difficulty breathing. He had greenish sputum with his cough. On examination there was decreased resonance on the right. Chest X-ray revealed infiltrate of the right lower lobe. The diagnosis was pneumonia. The separation examination, conducted later in August 1966, revealed normal examination of the lungs and chest. X-ray examination of the chest was negative. An October 2007 VA pulmonary consult note indicates that the Veteran had hemoptysis of a few spots of blood in July 2007. At the time he was having congestion and chest pains. It was further noted that he frequently awakens during the night with chest pain and congestion. Generally his phlegm is white. He has had no further hemoptysis since July. The VA pulmonary staff physician indicated that the Veteran is a former smoker and had exposure to Agent Orange, and as such is at increased risk for respiratory tract cancers. A December 2008 VA examination report notes normal examination of the lungs. A November 2009 VA treatment record reflects that there was no recent history of productive cough, hemoptysis, collapsed lung, or pulmonary embolism. The Board notes that the requirement that a claimant have a current disability in order for service connection to be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. McLain v. Nicholson, 21 Vet. App. 319 (2007). VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is evidence of a current disability, evidence of a lung disorder in service, and an indication, via the October 2007 VA treatment record, that a current lung disability may be related to active service, to include exposure to Agent Orange. As such, a VA examination is necessary. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all records of VA treatment of the Veteran dating from June 2011 to the present, and associate them with the claims file. 2. Return the claims file to the October 2006 VA audiology examiner, or suitable substitute. The examiner must review the claims file, to include a copy of this remand, and provide an opinion on the following: (i) While the service treatment records, to include the examinations at the time of service entrance and separation, do not show hearing loss at that time, is any current bilateral hearing loss at least as likely as not (50 percent probability or greater) etiologically related to in-service noise exposure (i.e., did in-service noise exposure cause the Veteran to progressively lose his hearing in his left ear over the years)? 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. In-service noise exposure is conceded. (ii) Is any current tinnitus at least as likely as not (50 percent probability or greater) etiologically related to in-service noise exposure (i.e., is the Veteran's complaint of tinnitus consistent with his in-service noise exposure)? The examiner should concede that the Veteran does currently suffer from tinnitus. The examiner must provide a rationale for the opinions expressed. In rendering the opinions, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 3. Thereafter, the Veteran should be afforded a VA examination to determine the nature and etiology of any current respiratory disability, to include the currently diagnosed hemoptysis. The examiner is requested to furnish an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran has a respiratory disability causally related to his military service, to include herbicide exposure. The examiner should consider the claims file, to include the following: the service treatment records showing infiltrate in the lungs and a diagnosis of pneumonia in August 1966, the August 1966 separation examination showing normal examination of the lungs and chest, and the October 2007 VA treatment record showing a diagnosis of hemoptysis. Any opinion expressed should be accompanied by a complete rationale. 4. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claims. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for 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 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs