Citation Nr: 1312829 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 03-03 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in CHI THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for brain seizures. 4. Entitlement to service connection for cystitis. 5. Entitlement to service connection for multiple joint pains. 6. Entitlement to service connection for a knee disorder. 7. Entitlement to service connection for hemorrhage seizure. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran served on active duty from May 1958 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In January 2004, the Board, inter alia, remanded the Veteran's claims on appeal for further procedural and evidentiary development. The Veteran's claims were subsequently returned to the Board. In February 2008, the Board remanded the Veteran's bilateral hearing loss claim for further development and issued a decision which denied the remainder of Veteran's claims which are currently on appeal. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2009, based on a Joint Motion for Remand (Joint Motion), the Court issued an Order remanding this case for compliance with the Joint Motion. In January 2010, the Board vacated the portion of the February 2008 Board decision which denied the Veteran's claims and remanded the claims for further evidentiary development. In July 2012, the Board remanded all the claims on appeal for additional evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran's current hypertension, brain seizures, cystitis, multiple joint pains, bilateral knee disorders and hemorrhage seizure are not shown by the medical evidence of record to be related to his military service. Nor are any of these current conditions causally related to or otherwise aggravated by his service-connected post-traumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by the Veteran's military service, may not be presumed to have been incurred in service, and was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. Brain seizures were not incurred in or aggravated by the Veteran's military service, may not be presumed to have been incurred in service, and were not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. Cystitis was not incurred in or aggravated by the Veteran's military service, and was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 4. Multiple joint pains were not incurred in or aggravated by the Veteran's military service, may not be presumed to have been incurred in service, and were not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 5. A knee disorder, right or left, was not incurred in or aggravated by the Veteran's military service, may not be presumed to have been incurred in service, and was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 6. Hemorrhage seizure was not incurred in or aggravated by the Veteran's military service, may not be presumed to have been incurred in service, and was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking entitlement to service connection for hypertension, brain seizures, cystitis, multiple joint pains, knee disorder and hemorrhage seizure. VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 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). Prior to the initial adjudication of the instant case, the RO's letters, dated in February 2001 and April 2002, advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, subsequent notification letters were sent from the RO to the Veteran in May 2004, August 2006 March 2008, and December 2011 which was followed by re-adjudication of the claim by the RO in a December 2012 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In addition, the duty to assist the appellant has also been satisfied in this case. In making this determination, the Board notes that the Veteran's complete service medical records are not on file. Correspondence from the National Personnel Records Center (NPRC), dated in August 2006, noted that all available service medical records had been forwarded, and that no other records were on file for this Veteran. The Veteran was notified of this loss by the RO in an August 2007 supplemental statement of the case. Consequently, in reaching this decision, the Board acknowledges, and accepts, the heightened obligation to provide an explanation of the reasons or bases for its findings and to consider the benefit of the doubt rule under 38 U.S.C.A. § 5107(b). See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A December 2011 letter informed the Veteran that attempts to obtain evidence from the Social Security Administration and medical records from the VA Medical Center in Atlanta, Georgia, were without success. The RO has obtained all of the Veteran's identified VA medical treatment records, and private treatment records to the extent possible. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran was provided with VA medical examinations relating to each of the issues addressed herein. The examinations are sufficient to adequately adjudicate the claims decided herein. Physical examination was conducted and the examiner reviewed the evidence in the claims file. The examiner provide opinions as to the etiology of the disorders and supported the opinions with adequate rationales. Finally, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of issues decided herein, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Competency The appellant can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the appellant as a lay person has not been shown to be capable of making medical conclusions; thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). While the appellant is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." The Court found the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Although the appellant is competent in certain situations to provide a diagnosis of a simple condition such as varicose veins, the appellant is not competent to provide evidence as to more complex medical questions and is not competent to provide an opinion as to the etiology of the claimed disorders for which he currently seeks service connection. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including hypertension, brain hemorrhage, organic disease of the nervous system and arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis After reviewing the Veteran's claims folders, the Board finds that there is no evidence of the Veteran's hypertension, brain seizures, cystitis, multiple joint pains, knee disorder or hemorrhage seizure during his military service or for many years thereafter. Moreover, there is no competent evidence of record linking any of these current conditions to the Veteran's military service. Historically, the Veteran served on active duty in the Army from May 1958 to August 1978. A review of the available service medical records is silent as to any complaints or diagnoses of hypertension, brain seizures, cystitis, multiple joint pains, a knee disorder or hemorrhage seizure. Physical examination reports, dated in April 1970 and in July 1976, as well as the Veteran's retirement physical, performed in May 1978, were all silent as to any findings or diagnoses of any of the conditions claimed in this appeal. Following his discharge from the service, the first post service treatment for any of the conditions claimed on appeal is not shown until February 1996. Thus, post service medical records are completely silent for any of these conditions for over seventeen years after the Veteran's discharge from the service. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The February 1996 treatment indicates that the Veteran was hospitalized following complaints of mental status changes one week earlier. As noted in the report, "he had been entirely well prior to waking on the morning of 02/06 quite confused and unsure of where he was." The report also noted that there was "no history of any seizure or prior strokes." The Veteran was subsequently discharged with diagnoses of rule out left parietal arteriovenous malformation, left parietal cerebrovascular accident, multiple old cerebrovascular accidents, and essential hypertension. There is no medical evidence of record linking the Veteran's hypertension, brain seizures, cystitis, multiple joint pains, knee disorders or hemorrhage seizure to his military service. Although subsequent post service treatment records do show treatment for these conditions, none of these records relate any of these conditions to the Veteran's military service. After reviewing the Veteran's claims folder, and examining the Veteran, a VA examiner in June 2004 opined that none of the conditions claimed by the Veteran, including hypertension, cerebral infarcts, urinary tract infection, arthritic disorders, and whatever neurological events have occurred in the Veteran, resulted from his military service. The VA examiner also opined that there was no relationship between any of these conditions and the Veteran's service-connected PTSD. In a separate VA examination for hypertension and joints, also conducted in June 2004, the VA examiner opined that the Veteran's current hypertension and bilateral chronic knee strain were not as likely as not related to his military service, and that there was no current medical literature to support that either of these conditions are due to or have been aggravated by the Veteran's PTSD. Accordingly, there are no medical opinions of records supporting the Veteran's claims herein. Although the Veteran contends that his claimed conditions on appeal resulted from his military service, as set out above, his statements are not competent evidence to establish a diagnosis or etiology for any of the disorders on appeal. Consequently, his lay assertions of medical diagnosis cannot constitute evidence upon which to grant the claims for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). The weight of the competent evidence of record demonstrates that the claimed conditions on appeal began many years after the Veteran's discharge from military service and are not shown to be related thereto. As the preponderance of the evidence is against the claims for service connection for hypertension, brain, cystitis, multiple joint pains, knee disorder and hemorrhage seizure, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. Service connection for brain seizures is denied. Service connection for cystitis is denied. Service connection for multiple joint pains is denied. Service connection for a knee disorder is denied. Service connection for hemorrhage seizure is denied. REMAND The Veteran is claiming entitlement to service connection for bilateral hearing loss. In February 2008, the Board remanded the issue back to the RO to obtain a VA examination and opinion regarding the etiology of the hearing loss. In response to the Board's remand, a VA examination was conducted in April 2008. The examiner diagnosed moderate to moderately severe sensorineural hearing loss bilaterally. He opined that the disability was not etiologically linked to the Veteran's active duty service. The rationale provided was that the Veteran's hearing was normal at the time of an April 1970 hearing test and slight hearing loss for the left ear was present at time of the separation examination which was conducted in May 1978. The examiner noted that hearing thresholds during active duty did not meet the criteria for disability under VA regulations and that there were no documented complaints of hearing loss or tinnitus in the service treatment records. Based on this, the examiner opined that it was not at least as likely as not that the Veteran's hearing loss and tinnitus were related to military but instead to possible aging factors. The Board finds the etiology opinion included in the report of the April 2008 VA examination deficient. The fact that the Veteran did not exhibit hearing loss for VA purposes during active duty nor the fact that he did not complain of or receive treatment for hearing loss during active duty is not fatal to the hearing loss claim. Hensley v. Brown, 5 Vet. App. 155 (1993) holds that, if hearing loss as defined by VA under 38 C.F.R. § 3.385 is not shown in service or at separation from service, service connection can be established if medical evidence shows that it is actually due to incidents during service. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, VA must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley , 5 Vet. App. at 159. In the current claim before the Board, as in Hensley, comparison of the audiology reports from the Veteran's in-service audiological examinations, performed in April 1970 and his separation examination in May 1978, shows an upward shift in all tested thresholds levels. Under these circumstances, as a decrease in the Veteran's hearing acuity was shown in-service, a current hearing loss is shown to be due to noise exposure, and the Veteran was exposed to noise in-service, the Veteran should be provided with a new VA audiological examination to determine the etiology of his bilateral hearing loss regardless of whether hearing loss for VA purposes were demonstrated during active duty. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should give the Veteran another opportunity to present information/evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records/responses received are associated with the claims file, or a reasonable time period for the Veteran's response has expired, the Veteran must be afforded an appropriate VA examination to determine the current existence and etiology of any bilateral hearing loss found. The claims folder must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include an audiogram, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz , provide the puretone threshold average, and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. After a review of the examination findings and the entire evidence of record, the examiner must render an opinion, in light of the service and post service evidence of record, as to whether any current right or left ear hearing loss is related to the Veteran's periods of military service, or to any incident therein, to include as due to noise exposure. The Veteran's military occupational specialty, the objective medical findings in the service medical records, the previous VA audiological evaluations currently of record, the Veteran's history of in-service and post service noise exposure, and any other pertinent clinical findings of record, must be taken into account. Prior to forming an opinion, the examiner should be mindful of the holding in Hensley, as noted in the discussion above. The examiner must specifically address the question of whether any degree of hearing loss began as a result of any in-service noise exposure. The examiner should assume the Veteran was exposed to in-service acoustic trauma. A complete rationale for all opinions must be provided. If the examiner cannot provide the above requested opinion without resort to speculation, it must be so stated. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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). ______________________________________________ Joy A. McDonald Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs