Citation Nr: 1312348 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-48 922 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss. 2. Entitlement to service connection for hypertension, to include as due to in-service exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the RO. In January 2013, the Veteran submitted additional evidence directly to the Board, and the Veteran's representative waived initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). A review of the Veteran's Virtual VA electronic claims file reveals no additional records. FINDINGS OF FACT 1. The currently demonstrated bilateral sensorineural hearing loss disability is shown as likely as not to be due to the Veteran's exposure to hazardous noise exposure in service. 2. The Veteran is not shown to have been exposed to herbicides, to include Agent Orange, during his service in Korea. 3. The Veteran is not shown to have exhibited a combination of manifestations or sufficient observations to establish the presence of chronic hypertension during service. 4. The Veteran is not found to have presented credible lay assertions that are sufficient to establish a continuity of symptomatology referable to chronic hypertension after service. 5. The currently demonstrated chronic hypertension is not shown to be due to an event or incident of the Veteran's period of active service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by a bilateral sensorineual hearing loss is due to disease or injury that was incurred in active service. 38 U.S.C.A.§ 1110,1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R.§ 3.102, 3.303 (2012). 2. The Veteran's disability manifested by chronic hypertension is not due to disease or injury that was incurred in or aggravated by service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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). Given the favorable disposition of the claim for service connection for bilateral hearing loss, the Board finds that all notification and development actions needed to fairly adjudicate that claim have been accomplished. As regards the remaining claim for service connection for hypertension, the RO provided a pre-rating VCAA notice letter to the Veteran in October 2009. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the October 2009 pre-rating letter. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. Various private treatment records are associated with the claims folder. The Veteran has not indicated that he had any other additional information or evidence to submit in support of his claim. The Veteran underwent VA examination in April 2011 to obtain medical evidence as to the nature and likely etiology of the claimed hypertension. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss and hypertension, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, this list includes cardiovascular-renal disease and organic disease of the nervous system, to include hearing loss. See 38 C.F.R. § 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. Bilateral Hearing Loss The Veteran asserts that his exposure to loud noise while in service caused the development of his bilateral hearing loss. Specifically, he reports having exposure to weapons fire and simulated mortar explosions during training and to jet engine noise during field exercises while stationed in Korea when he did not wear hearing protection. The Veteran also described an incident in Korea when he was in a tunnel and a fellow solder shot his gun into the wall, causing a loud explosion. In addition to the above-noted legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. Before proceeding, the Board observes that prior to November 1, 1967, audiometric tests for hearing by a service department were reported by a standard set by the American Standards Association (ASA). Since November 1, 1967, the standard for audiometric testing for hearing has been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The ISO-ANSI standard is the current method for measuring hearing loss and used by VA to determine a hearing loss disability under 38 C.F.R. § 3.385. In order to facilitate data comparison, test results before November 1967 under the ASA standard should be converted to the ISO-ANSI standard. In the charts below, ASA units appear to the right and in parentheses, while the ISO-ANSI units appear to the left. The Veteran's service treatment records reflect that, upon entrance examination in December 1962, a pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (0) 10 (0) 10 (0) N/A 30 (25) LEFT 15 (0) 10 (0) 10 (0) N/A 25 (20) In November 1964, the Veteran complained of terrible hearing out of his right ear. On examination, wax was found around the auditory canal. His ears were flushed, and the Veteran reported that the condition was relieved. On December 1965 separation examination, pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 (10) 20 (10) 10 (0) N/A 25 (20) LEFT 25 (10) 5 (-5) 10 (0) N/A 0 (5) The Veteran reported that he had occasional right ear pain associated with weather changes; however, his ears were noted to be normal on examination. While there is no evidence of chronic bilateral hearing loss in service, the absence of in-service evidence of hearing loss disability is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Following service, the private treatment records document a history of hearing loss as early as 2002. A November 2009 statement from Billings Hearing Aid reflects that he Veteran presented with complaints of hearing loss in March 2002. The examiner measured a moderate, bilateral, symmetrical sensorineural hearing loss. The Veteran was then fitted for hearing aids. On a VA fee basis examination in January 2010, the Veteran reported that he was on his third set of hearing aids since 1995. He indicated that he served for 3 years with the Army, with one year in Korea. His military occupational specialty was general crypto repairman, which involved exposure to mechanical noises. The Veteran noted that he had performed rifle range shooting approximately once a month during service. He also reported an incident in Korea when a fellow soldier discharged his weapon into a tunnel wall, creating a loud explosion. He noted that this incident was pretty traumatic and caused him to experiencing ringing in his ears since that time. After service, the Veteran worked for the U.S. Postal Service. Recreationally, he used to hunt, but had not done so for years. On audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 65 70 70 LEFT 60 65 65 70 80 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 76 percent in the left ear. The examiner, an audiologist, determined that, given that the separation examination showed no increased loss of hearing as compared to the entrance examination, it was more likely than not that the Veteran's hearing loss was not directly related to service. However, regarding tinnitus, she found it more likely related to his time in service, as the Veteran was able to recall the specific event that caused his tinnitus. In an August 2010 statement, the Veteran's treating audiologist from the Costco Hearing Aid Center noted that the Veteran was evaluated in June 2005 and again in June 2009. The examiner noted a history of hearing loss and tinnitus that the Veteran believed dated back to his time in the service. He reported an incident of severe acoustic trauma during service. The audiologist noted that the Veteran had bilateral moderate to severe hearing loss. Word recognition scores were mildly reduced in quiet and noise. The Veteran was fitted with hearing aids. The audiologist commented that acoustic trauma was noted to be ototoxic. While it was impossible to know how much of the Veteran's history of military noise exposure and acoustic trauma contributed to his current level of hearing, he determined that it was "certainly possible" that this exposure had a long term detrimental effect on hearing. The Veteran's service treatment records do not document the occurrence of, or treatment for, any specific incident of acoustic trauma. However, the Veteran is competent to assert the occurrence of an in-service injury, to include in-service noise exposure. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). In this regard, the Veteran reported being exposed to loud noise during service, including weapons fire and simulated mortar explosions during training and jet engine noise while stationed in Korea. Given the circumstances of the Veteran's duties in service, the Board finds that he was likely exposed to significant levels of hazardous noise during service. Thus, the Board accepts the Veteran's assertions as credible. See 38 U.S.C.A. § 1154. The record also reflects a current bilateral hearing loss disability as determined by 38 C.F.R. § 3.385. After carefully reviewing the entire record, including the differing medical opinions, the Board finds the evidence to be in relative equipoise in showing that the current hearing loss disability as likely as not is due to the exposure to excessive and harmful noise levels that began during his period of active service. Where, as here, after consideration of all evidence and material of record in a case for VA benefits, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for the bilateral hearing loss disability are met. Hypertension The Veteran contends that his hypertension originated in service. In the alternative, the Veteran asserts that his hypertension is related to his exposure to a chemical defoliant, to include Agent Orange, during his service in Korea. T here is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). In addition, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iv). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; hairy cell leukemia and other chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); Parkinson's disease; and ischemic heart disease. 38 C.F.R. § 3.309(e). Significantly, Note 3 at the end of § 3.309 defines ischemic heart disease as not including hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. In this case, the Veteran is not shown to have served in the Republic of Vietnam or the DMZ in the Korea between 1968 an 1971, as he was discharge in 1966. As such, presumptive exposure to herbicides in service is not warranted. Even presuming such exposure, hypertension is not included under 38 C.F.R. § 3.309(e), the Veteran is not entitled to service connection for this disability on a presumptive basis stemming from his exposure to herbicides in service. However, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. The Board notes that the Veteran's service treatment records do not reflect any diagnosis referable to hypertension. Significantly, at the time of the discharge examination in December 1965, his blood pressure was recorded as being 124/90. Following the Veteran's discharge from service, the private treatment records reflect a history of controlled hypertension in 2001. The private treatment records document continued treatment for hypertension, but do not discuss the likely etiology or onset of this disability. In various written statements, the Veteran asserts that he was first diagnosed with hypertension in 1972 or 1974 when he was examined for the purpose of obtaining mortgage insurance. He reports subsequently being started on medication to control his hypertension in the 1980's. He also asserts that, given that his blood pressure reading at discharge from service was borderline, his hypertension was first manifested in service. On VA examination in April 2010, the Veteran reported the onset of hypertension in approximately 1972. He indicated that he started medication around 1976. On examination, blood pressure was recorded as being 142/62, 140/64 and 140/64. The examiner diagnosed hypertension. The examiner opined that it was less likely than not that the blood pressure reading on the December 1965 discharge examination represented the initial onset or first manifestation of the current hypertension condition. In so finding, the examiner noted that, per medical literature, the diagnosis of mild hypertension should not be made until blood pressure had been measured on at least 3 to 6 visits over a period of several weeks or months in order to determine what the blood pressure trends were and/or if they were consistently elevated. He noted that there were several factors which could cause a temporary elevation in blood pressure readings including stress, pain and caffeine/tobacco use prior to the reading, and taking the reading before one had rested for 5 minutes. The examiner noted that the Veteran's hypertension condition had not been well established until the early to mid-1970s, which would have been 5 to 10 years after separation from service. Thus, in this case, the VA examiner has provided the only opinion that weighs against the Veteran's claim. The Board finds that this opinion is competent and highly probative, as the examiner reviewed the Veteran's service records and took a history from the Veteran. With the available information, the examiner concluded that the Veteran's hypertension less likely than not was first manifested in service. The examiner also supported his opinion with medical rationale and indicated that he review pertinent medical literature. Likewise, there is no competent and credible evidence of record showing the manifestation of chronic hypertension to a compensable degree within one year of separation from service. In fact, as noted, there is no medical evidence of diagnosis until 2001, and the Veteran himself has noted that he was first diagnosed with hypertension sometime in the early 1970s, more than 5 years following his discharge from service. Thus, service connection is not warranted on a presumptive basis. The Board has also considered the Veteran's written statements and report on examination to the effect that his hypertension began in service. An appellant is competent to testify as to his observations, but this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As noted, the Veteran's discharge examination included an elevated blood pressure reading, but this one finding alone cannot constitute a combination of manifestations or sufficient observation for the purpose of establishing the presence of hypertension as a chronic disease, as distinguished from a mere isolated finding, in service. To the extent that the Veteran advances his own interpretation of his medical condition indicating that his current hypertension is related to the in-service manifestations or exposure to a chemical defoliant, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, as such, the Veteran has not presented credible lay assertions that are sufficient to establish a continuity of symptomatology referable to chronic hypertension after service. On review, the Veteran's statements at best only serve to document the presence of chronic hypertension more than 5 years after service. This evidence was considered by the VA examiner in providing his medical opinion. The probative value of the Veteran's general assertions in this regard is outweighed by that of the specific, reasoned opinion of the VA physician who performed the April 2011 examination. In summary, the Board finds that the preponderance of the evidence establishes that the currently demonstrated chronic hypertension is not due to a documented event or incident of his period of service. Accordingly, on this record, the claim of service connection for hypertension must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER Service connection for the bilateral hearing loss disability is granted. Service connection for hypertension, to include as due to in-service exposure to herbicides, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs