Citation Nr: 1312272 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 06-10 875A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for type II diabetes mellitus to include as secondary to service-connected hypertension and coronary artery disease. 3. Entitlement to a disability rating in excess of 10 percent for service-connected hypertension. ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to September 1976. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in August 2006 and January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. These issues were previously before the Board in December 2008, May 2010 and November 2011 and were remanded for further procedural and evidentiary development. The issues have now returned to the Board for appellate adjudication. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's current bilateral hearing loss disability is not related to active military service. 2. The preponderance of the evidence shows that the Veteran's diabetes mellitus was not incurred in military service, was not incurred to compensable degree within one year of discharge from service, is not otherwise related to active military service and was not caused by or aggravated by service-connected hypertension and/or coronary artery disease. 3. The preponderance of the evidence shows that the Veteran's hypertension is not manifested by diastolic pressure readings of predominantly 110 or more or systolic pressure readings of predominantly 200 or more. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Type II diabetes mellitus was not incurred in or aggravated by active military service, it may not be presumed to have been so incurred or aggravated and it is not proximately due to, the result of, or chronically aggravated by service-connected hypertension and/or coronary artery disease. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for a disability rating in excess of 10 percent for service-connected hypertension have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, 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 the claim: (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). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and 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 including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that letters dated in September 2005, March 2006 and August 2008 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the September 2005 and August 2008 letters advised the Veteran what information and evidence was needed to substantiate his service connection claims for diabetes mellitus and hearing loss. The letters also informed the Veteran of his and VA's respective duties for obtaining evidence. The letters requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. The March 2006 and August 2008 letters informed the Veteran how VA determines the disability rating and effective date if his service connection claims are granted. For increased-compensation claims, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 percent and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life"). A review of the records shows that the letters dated in July 2005 and April 2009 satisfied the duty to notify provisions with respect to the Veteran's increased rating claim. In this regard, the July 2005 letter informed the Veteran that he should submit evidence showing his service-connected hypertension had become worse. The April 2009 letter informed the Veteran of the specific rating criteria used to evaluate hypertension. The RO notified the Veteran of the types of medical or lay evidence that he may submit in the April 2009 letter. Specifically, the Veteran was informed that evidence which may show an increase in severity may include on-going treatment records; recent Social Security determinations; statements from employers as to job performance, lost time or other information and statements discussing his disability symptoms from people who have witnessed how they affect the Veteran. The letters informed the Veteran of his and VA's respective duties for obtaining evidence. The letters also requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. The August 2008 letter satisfied the duty to notify provisions with respect to the Veteran's service connection claim for hearing loss prior to the initial AOJ decision in January 2009. Regarding the Veteran's service connection claims for diabetes and his increased rating claim for hypertension, the information provided in the July 2005and September 2005 letters satisfied most of the duty to notify provision prior to the initial AOJ decision in August 2006. However, the Veteran was informed on how VA determines a disability rating and effective date subsequent to the initial AOJ decision in the letters dated in March 2006 and April 2009. The Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the AOJ readjudicated the case by way of the supplemental statement of the case issued in August 2011 after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran will not be prejudiced by the Board proceeding to decide his claims, as the timing error did not affect the essential fairness of the adjudication. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, letters from the Veteran's private physicians, VA treatment records, VA examination reports dated in August 2005, August 2006, June 2010 (with an April 2012 addendum) and March 2012 and lay statements from the Veteran. The August 2006, June 2010 (with April 2012 addendum) and March 2012 VA examination reports reflect that the examiners conducted a review of the Veteran's claims file in addition to obtaining an oral history and providing a physical evaluation of the Veteran with respect to his hearing loss and diabetes. Following the above, the examiners provided an assessment of the Veteran's current disability and an etiology opinion. The examiners included an explanation for their opinions, which appear to be based on both the medical and lay evidence of record and medical knowledge. Accordingly, the Board concludes that the examinations are adequate for adjudication purposes. The August 2005 and March 2012 VA examination reports reflect that the examiners reviewed the claims file, obtained an oral history from the Veteran and conducted an evaluation of the Veteran with respect to his hypertension. The examiners documented in detail the Veteran's reported symptoms and the results of the clinical examinations. Accordingly, the Board concludes that the examinations are adequate for rating purposes. These issues were previously remanded in December 2008 so that the AOJ could consider new evidence submitted by the Veteran and to provide proper notice to the Veteran with respect to his increased rating claim. The RO sent a letter dated in April 2009, which as discussed above, properly notified the Veteran of how to substantiate his increased rating claim. The Board remanded the claims again in May 2010, because the RO did not readudicate the claims or issue a supplemental statement of the case with respect to the issues on appeal and to provide the Veteran with a VA examination for hearing loss. The claims file contains a June 2010 VA examination that addresses the questions raised in the May 2010 Board remand. Thereafter, the Appeals Management Center (AMC) readjudicated the claims based on all of the evidence of record. Finally, the Board remanded the claims in November 2011 to obtain any recent treatment records, obtain the Veteran's service personnel record and to provide the Veteran with VA examinations with respect to the remaining claims on appeal. The claim file contains the Veteran's service personnel records and recent VA treatment records. As discussed above, the claims file contains a March 2012 VA examination that addresses the issues raised in the November 2011 Board remand with respect to the Veteran's service connection claim for diabetes and it discusses the current severity of the Veteran's service-connected hypertension. The record also contains an April 2012 VA opinion with respect to the Veteran's hearing loss. The Board notes that the November 2011 remand specifically requested that an examination and opinion be provided with respect to this issue; however, the examiner that provided the April 2012 opinion was the same examiner who evaluated the Veteran's hearing in a June 2010 VA examination. The examiner determined that an examination was not necessary as she had previously evaluated the Veteran and had a copy of the prior examination report. The examiner adequately addressed the Board's questions in the November 2011 remand and supported her opinions with an explanation. Accordingly, the Board finds that there has been substantial compliance with the December 2008, May 2010 and November 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, the record presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Bilateral Hearing Loss For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 (2012). Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that threshold levels above 20 decibels indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 155 (1993) citing MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988). In assessing the Veteran's service connection claim for hearing loss, the Board must first determine whether the Veteran has a current hearing loss disability under VA regulations. As noted above, hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. A June 2010 VA audiology examination report shows auditory threshold higher than 40 decibels (dB) at 4000 Hertz (Hz) in the left ear. Furthermore, Maryland CNC speech recognition scores were less than 94 percent bilaterally. The examiner determined that the audio evaluation revealed hearing loss consistent with sensorineural impairment. Thus, the evidence of record reveals that the Veteran has current bilateral hearing loss disability. The Veteran contends that he injured his ears in military service due to loud noise exposure as a military policeman. The Board observes that the Veteran's service personnel record indicates that his military occupational specialty (MOS) during service was military policeman. In a case where a veteran is seeking service connection for any disability, due consideration must be given to the places, types, and circumstances of the veteran's service. 38 U.S.C.A. § 1154(a). The Board finds it likely that the Veteran in the course of his duties as a military policeman would have been exposed to acoustic trauma from small arms fire during basic training and on the practice range and loud siren noises from his police vehicle. Therefore, loud noise exposure is consistent with the conditions of the Veteran's active military service. Accordingly, the Board finds that the Veteran's history of in-service acoustic trauma is credible. Nonetheless, injury during service does not, by itself, warrant service connection. Rather, there must be competent evidence that the Veteran has a current disability that was incurred in service. 38 C.F.R. § 3.303. The Veteran's service treatment records do not reveal that the Veteran had any complaint or finding of hearing loss during active military service. The September 1976 separation examination shows that the Veteran's ears were evaluated as normal and his hearing was within normal limits in both ears. See Hensley, 5 Vet. App. at 155. Furthermore, the Veteran denied currently having or that he ever had hearing loss in the September 1976 Report of Medical History form. Thus, there is no contemporaneous evidence of hearing loss during service. An August 2008 private medical report reveals that the Veteran reported that his hearing loss began during military service and the symptoms continued to bother him after discharge. The Veteran is competent to present evidence of difficulty hearing and the onset of such problems. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Sensorineural hearing loss s is recognized as a chronic disease under section 3.309(a) as an organic disease of the nervous system. However, the Veteran's service treatment records do not document a diagnosis of sensorineural hearing loss during active military service. The Federal Circuit held in Walker that section 3.303(b) only applies to a chronic disease as listed under section 3.309(a) that was shown in service. Walker v. Shinseki, 708 F.3d 1331, 1335-36 (Fed. Cir. Feb. 21, 2013). Thus, the Veteran may not establish continuity of symptomatology in lieu of medical nexus with respect to his sensorineural hearing loss. Furthermore, the Board finds that the Veteran's lay statements of hearing loss in service with a continuity of symptoms since service are not credible. In this regard, the Veteran's statements documented in the August 2008 private medical report are inconsistent with the other evidence of record. As an initial matter, the Veteran's lay assertions of continuity of symptomatology since military service are entirely uncorroborated by any objective evidence of record. See 38 C.F.R. § 3.303(b). Specifically, the record does not contain contemporaneous medical evidence, which reflects in-service complaints of bilateral hearing loss. But see Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (the Board cannot determine that lay evidence of onset in service lacks credibility merely because it is unaccompanied by contemporaneous service medical evidence). In fact, the Veteran denied having or ever having hearing loss in the September 1976 Report of Medical History. In addition, other statements made by the Veteran contradict the statements made during the private medical evaluation. In this regard, the Veteran asserted in August 2008 that his hearing loss in both ears began gradually over the last couple of years. See August 2008 claim for service connection. In addition, a September 2009 letter from the Veteran's private medical physician reveals that the Veteran reported his sensorineural hearing loss began after military service. Based on the foregoing, the Veteran's own lay statements are inconsistent with his statement that he had hearing loss in service with a continuity of symptoms since service. In light of the Veteran's inconsistent statements, the lack of complaint during service and the long evidentiary gap with no claim for compensation, the Board can find no plausible reason to afford any probative value to the Veteran's lay assertions that he has had hearing loss in service with a continuity of symptoms since that time. In this case, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current hearing loss disability and his active military service. In this regard, the Veteran was provided with a VA examination in March 2010 with an addendum in April 2012. The Veteran reported noise exposure during active military service to include noise from sirens in the squad cars and weapons training. The Veteran worked as a court reporter after military service and he denied post service recreational noise exposure. The examiner determined that the Veteran's hearing impairment is less likely than not caused by or result of military noise exposure. She explained that hearing at the time of discharge was within normal limits and there was no evidence of a shift in either ear between induction and discharge. She also explained that was not aware of any research evidence that expects hearing to deteriorate at a later time due to earlier exposure to noise. The examiner further noted that she does not know of a delayed onset theory of causation of hearing loss. The Board concludes that this opinion is probative and persuasive as the examiner reviewed the Veteran's claims file including his service treatment records and provided a clear rationale based on the evidence of record and medical expertise. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Medical opinions dated in August 2008 and January 2009 from the Veteran's private physician assert that the Veteran's hearing loss was due to his exposure to high decibel or high frequency noise during active duty service. The Board finds that the August 2008 and January 2009 private opinions are of low probative value as the physician did not provide any rationale for his opinions. In addition, it seems that the physician may have relied in part on the Veteran's statements that he had hearing loss in service and a continuity of symptoms since military service. However, as discussed in detail above, the Board has found that these statements by the Veteran are not credible. Thus, to the extent that the private physician relied on a history of symptoms of hearing loss in service and a continuity of tinnitus symptoms since discharge from service, which the Board does not find credible, the Board ascribes no probative value to that opinion. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (held that reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran); Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion). Based on the foregoing, the Board concludes that the August 2008 and January 2009 private medical opinions are of low probative value with respect to whether the Veteran's current hearing loss is related to active military service. The Veteran contends that his bilateral hearing loss is related to military service. The Board notes that, although under certain circumstances lay evidence can serve to support a claim for service connection, lay assertions regarding medical matters have no probative value when a lay person is not competent to offer such medical opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that in this case, an opinion on whether the Veteran's current hearing loss is related to noise exposure during military service requires special medical knowledge. The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current hearing loss disability and exposure to loud noise during military service. As the probative evidence of record does not establish a relationship between the Veteran's current hearing loss and his period of active military service, the Board finds that the preponderance of the evidence weighs against the claim and service connection for bilateral hearing loss is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Diabetes Mellitus, Type II The Veteran claims that his diabetes mellitus is related to active military service due to the types of food that he was required to eat during service. In the alternative he has argued that his diabetes mellitus was caused by or aggravated by his service-connected hypertension and/or coronary artery disease. In assessing the Veteran's service connection claim for diabetes, the Board must first determine whether the veteran currently has the claimed disability. VA treatment records show that the Veteran has a current diagnosis of type II diabetes mellitus. Thus, the Board finds that the medical evidence shows that the Veteran has a current diagnosis of the claimed disability. After a careful review of the record, the Board finds that the medical records do not show that the Veteran incurred diabetes during service or incurred diabetes to compensable degree within the first year of discharge from service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Pond, 12 Vet. App. at 346. The Veteran's service treatment records reveal that the Veteran did not receive treatment for or a diagnosis of diabetes during active military service. The Veteran's separation examination dated in September 1976 does not show a diagnosis of diabetes and the urinalysis was negative for sugar and albumin. The first medical evidence of a diagnosis of diabetes was in 2003, approximately 27 years after active military service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the competent and probative medical evidence of record shows that the Veteran's type II diabetes mellitus is not related to active military service. In this regard, the claims file contains two negative medical opinions. After evaluating the Veteran and reviewing the claims file, the August 2006 VA examiner determined that more likely than not the Veteran did not have diabetes mellitus at the time of discharge and it is more likely than not that service did not cause or aggravate diabetes mellitus. He explained that there was no indication of diabetes at the time of discharge. With respect to the Veteran's contention that due to his overweight status and high blood pressure reading at discharge he should have been screened for diabetes, the examiner noted that there was no evidence to support concerns regarding diabetes mellitus and therefore, there is no evidence to indicate that condition should have been screened. The VA examiner in March 2012 reviewed the claims file and evaluated the Veteran. Thereafter, she determined that the Veteran's diabetes mellitus was less likely than not incurred in or caused by service. The examiner explained that there was no evidence of diabetes in military service or for many years after service. The Veteran had evidence of normal blood sugar in 1979 and 1992. He weighed 200 pounds at discharge from military service and he had gained 20 pounds after military service in 1979 and he had normal blood sugar at that time. He gained significant weight after military service (up to 340 plus pounds). The Veteran was diagnosed with diabetes in 2002 and he was started on medication. After losing significant weight he no longer has blood sugar consistent with diabetes. The examiner noted that the Veteran reported addictive behavior with food and alcohol. She explained that the later weight gain was not caused by food the Veteran ate during military service. The weight gain after service was related to eating habits the Veteran had following service. His diabetic tendencies were also in part due alcohol toxicity from heavy alcohol use. The Board finds that the medical opinions in August 2006 and March 2012 are persuasive and probative as the examiners reviewed the record and provided clear explanations for their opinions based on the evidence of record and clinical experience. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed) The Board notes that the Veteran's private physician in July 2008 observed that although the Veteran's blood pressure was 140/90 and his weight was 200 pounds at the September 1976 separation examination, no studies were conducted for his elevated blood pressure along with laboratory tests to rule out concomitant medical conditions, such as diabetes mellitus. The physician provided the opinion that the Veteran's current diagnosis of diabetes mellitus can have an onset during active duty or shortly after separation, but no laboratory studies were done. The physician prefaced his opinion with "can," which is equivocal and speculative as to whether the Veteran's current diabetes had an onset in service or is otherwise related to service. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009); Bloom v. West, 12 Vet. App. 185, 187 (1999) (term "could" without other rationale or supporting data was speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). Therefore, the Board concludes that this opinion is not probative on the issue of whether the Veteran's diabetes is related to active military service. With respect to the issue of whether the Veteran's current diagnosis of type II diabetes is secondary to his service-connected hypertension and/or coronary artery disease, the evidence of record reveals that there is a competent and probative medical opinion that is contrary to the Veteran's contentions. After reviewing the claims file and evaluating the Veteran, the VA examiner in March 2012 determined that the Veteran's type II diabetes mellitus is less likely than not proximately due to or the result of the Veteran's service-connected hypertension and coronary artery disease. The examiner explained that diabetes is not caused by hypertension or coronary artery disease. There is also no evidence that hypertension or coronary artery disease aggravates diabetes. However, she noted that the opposite can be true in that diabetes can aggravate hypertension and can be a causal factor in coronary artery disease. The Board finds this opinion to be highly probative, as the VA examiner reviewed the claims file, examined the Veteran and provided a clear explanation for the opinion based on the evidence of record and medical principles. See Nieves- Rodriguez, 22 Vet. App. at 304. Furthermore, a private medical opinion dated in March 2006 appears to support the rational provided by the March 2012 examiner in that he stated that diabetes is a condition known to aggravated (make worse) hypertension. The Veteran contends that his type II diabetes mellitus is related to the fatty foods he was required to eat during service and/or caused by or aggravated by service-connected hypertension and coronary artery disease. Lay persons are competent to provide an account of observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current type II diabetes mellitus and service, service-connected hypertension and or service-connected coronary artery disease as that requires special medical knowledge. Based on the evidence discussed above, the Board concludes that the preponderance of the evidence shows that the Veteran's type II diabetes mellitus is not related to active military service or caused by or aggravated by service connected hypertension and/or coronary artery disease. Therefore, the Veteran's service connection claim for type II diabetes mellitus is not warranted. III. Merits of the Claims for an Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hypertension is currently assigned a 10 percent disability rating under Diagnostic Code 7101 (2012), which evaluates hypertensive vascular disease. A 20 percent rating is warranted for diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. Diastolic pressure of predominantly 120 or more requires a 40 percent rating. Finally, a maximum schedular rating of 60 percent is warranted for diastolic pressure of predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). The Board observes that the Veteran contends that his hypertension should be evaluated under Diagnostic Code 7007 for hypertensive heart disease. Diagnostic Code 7001, Note (3) indicates that hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. In this case, the Veteran is service-connected for hypertensive vascular disease (hypertension) and not hypertensive heart disease. Furthermore, the VA examiners in August 2005 and March 2012 determined that the Veteran does not have a diagnosis of hypertensive heart disease. Based on the foregoing, the Board concludes that the Veteran is properly evaluated under Diagnostic Code 7101 for his service-connected hypertension. Review of the competent evidence of record does not support a disability rating in excess of the currently assigned 10 percent disability rating at any time during this appeal. In this regard, a majority of the blood pressure readings found in the Veteran's medical records during the appeal period show diastolic pressure of less than 110 and systolic pressure of less than 200. An August 2005 VA treatment record documents that the Veteran brought in blood pressure readings that ranged from 98/62 to 132/71. A May 2010 VA treatment record shows that the Veteran has been checking his blood pressure usually in the evenings with values typically in the 130s/90s. Furthermore, a March 2012 VA examiner documented that the Veteran's blood pressure readings ranged from 143/89 to 159/104 during the examination and he did not have a history of diastolic blood pressure elevation to predominately 100 or more. The examiner determined that the Veteran's diastolic blood pressure is predominantly less than 100 and his systolic blood pressure is predominately less than 160. Based on the foregoing, the Board concludes that such findings are consistent with the Veteran's current 10 percent rating. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board considered the applicability of the benefit of the doubt rule in evaluating the Veteran's claim for a higher rating. However, as discussed above, a preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent at any time during this appeal. As such, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for service-connected hypertension is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hypertension with the established criteria found in the rating schedule for hypertensive vascular disease shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Board recognizes that the Veteran contends that he has a rapid heart rate and he was told by a medical professional that he has "Popeye arm" that makes it difficult to use intravenous therapy. The Veteran attributes these symptoms to his hypertension. The Board finds that the Veteran is not competent to attribute these symptoms to his hypertension as it requires medical knowledge. In addition, the competent medical evidence of record does not indicate that these symptoms are related to his hypertension. The March 2012 VA examiner determined that the Veteran's hypertension does not impact his ability to work. There is no other evidence of record indicating that the Veteran's hypertension has caused marked interference with his ability to maintain employment. Furthermore, the medical record does not show that the Veteran's hypertension has necessitated frequent periods of hospitalization during the appeal period or otherwise rendered impracticable the regular schedular standards for rating such disability. Thus, it appears that the criteria used to evaluate the Veteran's hypertension adequately compensate him for any loss in earning capacity, and referral for extra-schedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total disability rating based on unemployability due to service- connected disability; either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran specifically raised the issue of entitlement to a TDIU due to his service-connected hypertension in his July 2005 claim for an increased rating and in a July 2005 application for TDIU. The RO adjudicated the claim in an August 2006 rating decision and the Veteran did not appeal the portion of the decision that denied entitlement to a TDIU. The Board notes that the Court has held that a claim for entitlement to TDIU is a rating theory and "not a separate claim for benefits." See Rice, 22 Vet. App. at 453-54. However, bifurcation or the separate adjudication of different elements or theories of a claim are generally a matter within VA discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc); see also Rice, 22 Vet. App. at 455. Nothing in Rice suggests that the Veteran's disagreement with a decision on an increased rating claim must be read to also include a disagreement with the denial of a TDIU rating whether in the same or separate rating decision. Therefore, in the circumstances of this case, the Board declines to apply Rice and take jurisdiction over a claim for TDIU. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for type II diabetes mellitus to include as secondary to service -connected hypertension and coronary artery disease is denied. Entitlement to a disability rating in excess of 10 percent for service-connected hypertension is denied. ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs