Citation Nr: 1313075	
Decision Date: 04/19/13    Archive Date: 05/02/13

DOCKET NO.  08-36 766A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for hypertension. 

3.  Entitlement to service connection for a kidney condition.

4.  Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities.

5.  Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America



ATTORNEY FOR THE BOARD

R. Erdheim, Counsel


INTRODUCTION

The Veteran served on active duty from June 1965 to July 1974. 

This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted noncompensable service connection for bilateral hearing loss and denied the claims for service connection on appeal.

The issues of entitlement to service connection for hypertension, peripheral neuropathy of the bilateral upper extremities, and a kidney condition are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The evidence is evenly balanced with respect to whether the Veteran's tinnitus had its onset in service.

2.  Bilateral hearing loss is manifested by no more than auditory acuity level II in the left ear, and auditory acuity level I in the right ear.


CONCLUSIONS OF LAW

1.  Resolving all doubt in the Veteran's favor, tinnitus was caused or aggravated by service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 

2.  The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (DC) 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As the Board's decision to grant service connection for tinnitus herein constitutes a complete grant of the benefit sought on appeal for that issue, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. 

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper VCAA notice must inform the claimant of any information and evidence not in the 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.  Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). 

These notice requirements apply to all five elements of a service connection claim, including: (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).  Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). 

With regard to bilateral hearing loss, the Veteran has appealed with respect to the propriety of the initially assigned rating from the original grant of service connection.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claim for service connection for his bilateral hearing loss was granted and initial ratings were assigned in the April 2008 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Relevant to the duty to assist, the Veteran's service treatment records and post-service VA and private treatment records, and Social Security Administration records, have been obtained and considered.  The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal.  The Board has also reviewed the Veteran's paperless Virtual VA claims file.  The Veteran has also been afforded VA examinations in November 2007, September 2009, and April 2011 in order adjudicate his initial rating claim.  The Board finds these examinations to be adequate in order to evaluate the Veteran's bilateral hearing loss, as they include an interview with the Veteran, a review of the record, and relevant physical examination, addressing the relevant rating criteria.  

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. 

II.  Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Direct service connection may be granted with evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604   (Fed. Cir. 1996) [(table)]. 

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 (ii) present manifestations of the same chronic disease, and (b) with regard to chronic diseases only, evidence of continuity of symptomatology.  Otherwise, if the disease is not considered to be chronic, credible lay testimony is one factor that may establish a link between the current condition and service.

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.   

For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) (West 2002) provides a relaxed evidentiary standard of proof to determine service connection.  Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996).  When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012).  Satisfactory evidence is credible evidence.  See Collette.  Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012).  That provision does not establish a presumption of service connection; rather, it eases a combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected.  See Collette.  The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service; both of these inquiries generally require competent medical evidence.  Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). 

The Veteran contends that his current tinnitus was due to combat noise exposure in service.  Alternatively, he contends that his service-connected hearing loss caused or aggravated his tinnitus.  Specifically, he contends that his tinnitus is related to his hearing loss, which has a mixed component associated with otosclerosis that began in service.

Service treatment records do not reflect complaints of tinnitus.  However, there is a threshold shift in decibels denoting some hearing loss for which the Veteran is now service-connected.  That hearing loss has been considered to be at least in part related to the early development of otosclerosis beginning in service.

Service personnel records reflect that the Veteran served in Vietnam twice.  His military occupational specialty was that of bombardier. 

VA treatment records reflect that in April 2005, the Veteran reported having a history of nonpulsatile tinnitus.  In April 2007, he reported having had tinnitus since 1969.

On November 2007 VA examination, the Veteran reported exposure to combat in Vietnam, including artillery fire and combat fire.  The examiner stated that based on the Veteran's reported service experience in Vietnam, it was as likely as not that his tinnitus was related to his military service.  

In February 2008, a VA examiner reviewed the claims file and stated disagreement with the November 2007 positive opinion.  The examiner explained that no rationale was provided and that because there was no indication of high frequency threshold shifts on separation from service, and because the service records were negative for tinnitus, it was less likely than not that his tinnitus had its onset in service.  The examiner felt that the hearing loss threshold shift shown in service was not related to acoustic trauma but was rather related to the very early onset of otosclerosis.  

An August 2009 private opinion states that in light of the Veteran's two tours in Vietnam, where he was exposed to excessive noise associated with combat including 155 and 105 Howitzers, and that he reported having chronic and constant tinnitus, it was more likely than not that his current tinnitus was related to his service.  Tinnitus was most commonly associated with hearing loss due to hair cell damage or acoustic trauma.  The physician reviewed the Veteran's service treatment records in providing that opinion, finding evidence of a decrease in high frequency hearing loss in both ears.  

On September 2009 VA examination, the Veteran reported the onset of his tinnitus was when he was in his early 20s.  

On April 2011 VA examination, a VA examiner concluded that it was less likely than not that the Veteran's tinnitus was related to acoustic trauma in service.  The examiner explained that the threshold shift shown in service, which was a change of 10 decibels at 4000 Hertz, was not considered to be significant and was within the regular test/retest variability.  Therefore, because there was no indication of high frequency hearing loss or complaints of tinnitus in service, it was less likely than not that the current tinnitus was related to service.  The examiner also stated that while there were numerous possible causes of tinnitus, an audiologist could only address the association between tinnitus and acoustic trauma.  It was outside the scope of the examiner's experience to comment on a middle ear disease process such as otosclerosis and its possible relationship with tinnitus.  

In this case, the Veteran's service treatment records do not show clinical evidence of tinnitus at any time during active service.  However, his service records demonstrate that he participated in combat as evidenced by his military occupational specialty of bombardier.  Thus, in light of his combat experience, he may be presumed to have been exposed to acoustic trauma in service.  38 U.S.C.A. § 1154(b) (West 2002).  In that respect, the Board finds that the Veteran's testimony that he experienced tinnitus alongside his hearing loss in service to be credible and consistent with his circumstances of service. 

When reviewing the medical opinions in this case, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran's tinnitus is related to his service.  On one hand, the February 2008 and April 2011 VA opinions concluded that his tinnitus was less likely than not related to acoustic trauma in service because the threshold shift shown in service was not significant enough to demonstrate the presence of high frequency hearing loss.  On the other hand, the November 2007 and August 2009 positive opinions, which were also based upon a review of the service treatment records, found evidence of an auditory threshold shift in service.  Significantly, both positive opinions placed weight on the Veteran's reported combat history, including his exposure to bombers and artillery fire.  Such is important in this case because tinnitus is a subjective symptom and, in light of his combat experience, the Veteran is competent to state that he experienced tinnitus in service.  Thus, in this case, there are two opinions that give less weight to the Veteran's combat experience and find no significant threshold shift and two opinions that weight his reported combat experience and find a threshold shift significant enough to corroborate his reports of in-service tinnitus.  Therefore, because there are two opinions for and against the Veteran's claim, and all four opinions are adequate in that they base their conclusions on a review of the record and the Veteran's service experiences, the Board finds that the evidence is at least in equipoise.  Due to the subjective nature of tinnitus, the Veteran's combat experience, and that he is service-connected for hearing loss, and resolving the benefit of the doubt in favor of the Veteran, service connection for tinnitus is warranted.

Also significant in this case is the fact that the two negative opinions based their conclusion purely on the theory of tinnitus caused by acoustic trauma.  However, the 2011 VA opinion was provided by an audiologist who stated that an audiologist is not competent to provide an opinion as to whether the Veteran's tinnitus was related to his otosclerosis.  Because his otosclerosis was concluded to have begun while in service, explaining the difference in threshold shift in part, it has not been ruled out that his tinnitus is also related to that disease process, beginning in service.  The Veteran has reported experiencing tinnitus since his early 20s, around the onset of his inner ear disease.  The Board has already concluded that the Veteran's tinnitus began while in service, as stated above, and further finds that such tinnitus may also have been caused or aggravated by his inner ear disease which began in service, as such a theory has not been ruled out.  In any event, this discrepancy makes the April 2011 negative opinion less probative.  Accordingly, the weight of the probative evidence demonstrates that service connection for tinnitus, on a direct basis, is established. 

Increased Rating

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4 (2012).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 
The Veteran's service-connected bilateral hearing loss is rated as 0 percent disabling under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100.  The Veteran contends that his hearing disability is worse than the currently assigned evaluation and he is entitled to a higher rating for his bilateral hearing loss.

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.

Turning to the evidence of record, on April 2005 VA audiological evaluation, pure tone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
10
25
45
LEFT
40
35
30
25
40

The averages were 27.5 in the right ear and 32.5 in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.

On November 2007 VA audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
20
40
40
LEFT
40
45
25
30
40

The averages were 35 in the right ear and 35 in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.

An October 2008 VA treatment record demonstrated a finding of mild to severe mixed hearing loss from 250 Hertz to 8000 Hertz, bilaterally, and excellent speech recognition scores.  It was indicated that there was no change in hearing since November 2007.

On September 2009 VA audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
30
50
65
LEFT
40
45
45
45
70

The averages were 45 in the right ear and 51 in the left ear.  Speech audiometry revealed speech recognition ability of  92 percent in the right ear and of 96 percent in the left ear.

An August 2009 private treatment record reflects a diagnosis of mild to severe mixed hearing loss.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
30
35
50
60
LEFT
45
50
40
45
60

The averages were 43.75 in the right ear and 48.75 in the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 84 percent in the left ear.

On September 2009 VA audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
30
50
65
LEFT
40
45
45
45
70

The averages were 45 in the right ear and 51 in the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear.

On April 2011 VA audiological examination pure tone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
30
40
60
LEFT
35
45
45
40
65

The averages were 41 in the right ear and 49 in the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear.

For the left ear, the average pure tone threshold of 32.5, 35, 51, 48.75, 51, and 49 decibels, along with a speech discrimination scores of 100, 100, 96, 84, 96, and 92 percent, warrants a designation of Roman Numeral II at the highest, under Table VI of 38 C.F.R. § 4.85.  For the right ear, the average pure tone threshold of 27.5, 35, 45, 43.75, 45, and 41 decibels, along with a speech discrimination scores of 100, 100, 92, 92, 92, and 92 percent, warrants a designation of Roman Numeral I at the highest, under Table VI of 38 C.F.R. § 4.85.  Under Table VII of 38 C.F.R. § 4.85, where the left ear is Roman Numeral II and the right ear is Roman Numeral I, the appropriate rating is 0 percent under DC 6100. 

The Board has also considered whether a higher rating is warranted based upon functional impairment related to hearing loss.  However, the September 2009 VA examiner determined that with amplification, the Veteran was able to function in an occupational setting.  The Veteran has not submitted any statements as to how his hearing loss impacts his daily life.  Therefore, the Board finds no evidence that he experiences functional loss greater than the current noncompensable rating.

In this case, the Board finds that the requirements for a compensable rating are not met based on the demonstrated levels of hearing impairment, emphasizing that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Thus, a compensable rating for bilateral hearing loss must be denied.


III.  Other Considerations

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record.  In this regard, while the Veteran has not stated, and the evidence does not suggest, that his hearing loss alone renders him unemployable.  Moreover, he is already in receipt of a TDIU for a portion of the appeal period based upon his psychiatric disability.

An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 
Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.  

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hearing loss with the established criteria found in the rating schedule.  As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated.  There are no additional symptoms that are not addressed by the rating schedule.  Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disability.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Moreover, to the extent that the Veteran's hearing loss may interfere with his employability, such interference is addressed by the schedular rating criteria.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 

The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  However, the weight of the credible evidence demonstrates that a compensable rating for bilateral hearing loss is not warranted anytime during the appeal period.  As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49   (1990).


ORDER

Service connection for tinnitus is granted. 

A compensable rating for bilateral hearing loss is denied. 


REMAND

Additional development is necessary prior to further disposition of the claims for service connection for hypertension, peripheral neuropathy of the bilateral upper extremities, and a kidney condition. 

With regard to the claim for service connection for hypertension, a May 2009 VA examiner concluded that because there was no indication the Veteran suffered from renal insufficiency, his diabetes did not cause his hypertension.  However, a June 2009 VA record showed that the Veteran's hypertension was above goal and there was evidence of proteinuria.  An April 2010 private record stated that the Veteran's diabetes was not currently controlled.  His blood pressure was controlled.  Labs taken had shown elevated microalbumin.  A repeat lab was to be taken to assess renal function.  It was discussed with the Veteran the importance of tight glycemic control as well as blood pressure control to protect his kidneys.  These records were not considered by the VA examiner.  Thus, it is unclear whether the Veteran's service-connected diabetes has aggravated his hypertension.  Therefore, a VA examination should be obtained.

Because it is also possible that the Veteran has suffered kidney damage due to his diabetes, such should also be considered on VA examination.  

With regard to the claim for service connection for peripheral neuropathy of the bilateral upper extremities, on November 2007 VA examination, the Veteran reported having experienced numbness and tingling of his fingers since 2002.  Physical examination found no indication of peripheral neuropathy.

However, a December 2009 Social Security Administration record summarized other medical records, including one dated July 6, 2009, that showed suspected diabetic neuropathy and an August 18, 2009, record that had shown sensorimotor mixed neuropathy with evidence of axon loss and demyelination.  The cited medical records are not part of the record sent from the Social Security Administration.  Moreover, records dated subsequent to those do not show a diagnosis of neuropathy.  Thus, it should be requested that the Veteran submit those pertinent records and, because it appears that the Veteran might suffer from peripheral neuropathy related to his diabetes mellitus, a new VA examination should be obtained. 

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran identify any outstanding treatment records relevant to his claims for service connection for hypertension, peripheral neuropathy of the bilateral upper extremities (to include those that show a diagnosis of peripheral neuropathy), and a kidney condition.  After securing any necessary authorization from him, obtain all identified treatment records, as well as any available VA treatment records dated since 2008.  All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made. 

2.  Schedule the Veteran for a VA examination to determine the etiology of his hypertension, peripheral neuropathy of the bilateral upper extremities, and kidney condition.  The claims file must be reviewed by the examiner and the examination report should note that review.  The examiner should provide a thorough rationale for all opinions provided. 

With regard to the Veteran's peripheral neuropathy of the bilateral upper extremities, the examiner should first determine whether the Veteran suffers from neuropathy.  If so, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's neuropathy of the upper extremities was i) caused or ii) aggravated (beyond the normal progression of the disease) by his diabetes mellitus.  

With regard to the Veteran's kidney condition, the examiner should first determine whether the Veteran suffers from a kidney condition.  If so, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's kidney condition was i) caused or ii) aggravated (beyond the normal progression of the disease) by his diabetes mellitus.  

With regard to the Veteran's hypertension, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension was i) caused or ii) aggravated (beyond the normal progression of the disease) by his diabetes mellitus, taking into account documentation of possible renal trouble.  

3.  Then, readjudicate the claims.  If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs