Citation Nr: 1314287 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 08-39 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial compensable disability rating for hearing loss, left ear. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1977 to December 1979 with subsequent periods of active duty training in June 1981 and from April 1982 to May 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Atlanta, Georgia regional office (RO) which denied service connection for high blood pressure. The Veteran requested a copy of his service treatment records in November 2006 noting that his claim for high blood pressure had been recently denied. He indicated that he wanted to review his service treatment records before initiating his appeal. The RO did not provide the Veteran a copy of his service treatment records until three months later, in February 2007, right before the expiration of the one-year appeals period. In March 2007, the Veteran filed a notice of disagreement with the RO's denial of service connection for high blood pressure. In the interim the RO had issued another rating decision denying service connection for high blood pressure in March 2006 noting that new and material evidence, which was unspecified, had been received to reopen the claim but that the claim remained denied on the merits. Although the March 2007 notice of disagreement was untimely as it pertained to the February 2006 rating decision, the Board has determined that the Veteran kept the original claim pending by requesting a copy of his service treatment records in connection with the claim in November 2006, and expeditiously following up with his appeal after receiving the service treatment records. It is also significant that the RO did not respond to the Veteran's request until February 9, 2007, which was 18 days prior to the deadline for submission of the notice of disagreement within one year of the February 27, 2006 rating decision. The Board finds that the RO's delay in response to the Veteran's request for records unfairly prejudiced him in filing a timely appeal; and that the Veteran's good faith efforts to submit a timely appeal after the receipt of the records demonstrates his desire to continue with the appeal. After receiving the service treatment records, the Veteran filed his notice of disagreement one month later. Given the circumstances of this case, the Board construes the February 2006 rating decision as the decision on appeal, notwithstanding the untimely notice of disagreement. The Veteran requested a personal hearing before a Member of the Board at the RO in his December 2008 substantive appeal. The Veteran cancelled his scheduled hearing; therefore, his request is deemed withdrawn. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. With regard to the left ear hearing loss issue, the Board finds that a July 2010 statement by the Veteran contained wording sufficient to serve as a notice of disagreement with the June 2010 rating decision that assigned an initial noncompensable rating. To date, no statement of the case has been issued with regard to this issue. The issue will be addressed in the remand portion of this decision. The issue of entitlement an initial compensable disability rating for hearing loss, left ear, is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The Veteran's hypertension did not begin during service or within one year of separation from such service and is not otherwise attributable to service. CONCLUSION OF LAW The Veteran's hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he has hypertension as a result of service. Specifically he asserts that he had high blood pressure readings in service that are related to his diagnosis of hypertension after service. For the reasons that follow, the Board finds that the Veteran's hypertension was not manifest during service, within one year of service and is not related to any incident of service. The Board concludes that service connection is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Hypertension is considered a chronic disease, as it is listed under 38 C.F.R. § 3.309(a); therefore, service connection for hypertension can be established by showing continued symptomatology since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's VA treatment records reveal that he bears a current diagnosis of hypertension; therefore, the first Hickson element is established. Service treatment records show elevated blood pressure readings of 136/92 in June 1979, 140/84 in November 1979, and of 132/98 in December 1979, but the records do not show treatment or diagnosis of hypertension. The Veteran provided a statement that his high blood pressure started while in service and continued to progress to a compensable rate after leaving service. Although the service treatment records show instances of elevated blood pressure readings, there is no diagnosis of hypertension in service. The Veteran was examined in October 1980 within one year of his discharge from service, and his blood pressure was 126/88; but his blood pressure reading was not elevated at that time, nor was it within the range of hypertension for VA purposes. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90.). The Veteran has identified no incident of service to which his hypertension may be related. No such incident is mentioned in the Veteran's service, VA treatment records and examination reports. Thus, the Board finds that the Veteran's hypertension was not present during service and is not related to any incident therein. The second Hickson element is not established. The claim must fail on a direct basis. The Veteran was also afforded a VA examination in June 2010 in which his blood pressure was 160/98, 162/96, and 156/100. At that time the Veteran stated that he had been diagnosed with hypertension in service and given medication, but could not remember the name of the medication. The examiner diagnosed hypertension and opined that the hypertension was not related or aggravated by his military service as he was not treated for sustained hypertension while on active duty or in close proximity to separation from active service; he had isolated elevated blood pressure readings in 1979, but none were sustained over time to require prolonged and on-going daily medical treatment. The examiner stated that a diagnosis of hypertension could not be made on isolated elevations of blood pressure readings; a diagnosis is made on elevated readings consistently over time; and the Veteran did not have any objective evidence of this type of trend while in service. Therefore, the third Hickson element is also not established. The Board has also considered presumptive service connection. See 38 C.F.R. § 3.307 (2012). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular-renal disease, to include hypertension, becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran has reported that he had high blood pressure beginning in service. While a VA treatment record in March 2004 indicates hypertension for the past 10 years (i.e., March 1994), the earliest record of diagnosis of hypertension in the claims file is shown in a 2001 VA treatment record, over 20 years after service. Also, even a diagnosis in March 1994 would have been 15 years after service. The Board concludes that the one year presumption is not applicable. The Board finds that the competent evidence does not show hypertension diagnosed or manifest within one year of separation from service, much less manifest to a compensable degree. The Board acknowledges that the Veteran is competent to report that he has continued to experience symptoms he relates to hypertension since service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Veteran is also competent to report that he was experienced symptoms he relates to hypertension in service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the Veteran has not actually reported any symptoms which he experienced through the five senses over the years. The Veteran contends that his current hypertension is related to his military service; however, the Veteran's opinions are insufficient to provide the requisite nexus between an in-service event or injury and any current disability because, as a lay person, he is not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, his statements regarding the etiology of any hypertension are merely speculation as to a possible cause as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. With respect to the Veteran's statement on the VA examination that he was told he had hypertension in service and was given medication for this diagnosis, he is competent to report a contemporary medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran's assertions regarding the presence of a diagnosis of hypertension in service are outweighed by the opinion of the VA examiner in June 2010 who reviewed the record and noted that there was no actual documentation of hypertension during service. The examiner commented that the Veteran's elevated blood pressure readings in service in 1979 were isolated and not sustained over time, given that his blood pressure was normal in October 1980 and again in April 1982. As noted above, while the Veteran is competent to report continued symptomatology (which he has not in this case), he is not competent to diagnose himself with hypertension; and without supporting medical evidence of this, his assertions are merely speculation. Also, the Veteran contradicted his earlier statements in March 2007 that he had several elevated blood pressure readings in service and that just because the military did not treat him did not mean he did not have hypertension. Thus, to the extent that the Veteran more recently asserted that he was actually diagnosed and treated for hypertension in service, the credibility of his statements is undermined, as they are inconsistent with earlier statements. It is also worth mentioning that there is no actual record of a diagnosis of hypertension or treatment with medication in 1979. While lack of contemporaneous medical records does not, in and of itself, render the Veteran's lay evidence not credible, it may be a fact that the Board can consider and weigh against a Veteran's lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); see Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) (noting that "evidence of a prolonged period without medical complaint" may be considered in determining whether a claimant's condition is related to service). In this case, there is no medical evidence of any treatment for hypertension within one year after military discharge or until 1994 at the earliest, and possibly not until 2001, when he was actually formally diagnosed with hypertension. This is not simply a matter of the absence of medical evidence, as the Veteran also submitted treatment records dated in the late 1990s documenting treatment for eye disorders and the Veteran was not shown to have any findings related to hypertension at that time. Therefore, the Board does not find any probative evidence to support the Veteran's assertions that he was diagnosed with and treated for hypertension in service. The Board also finds it significant that a VA examiner in June 2010 found that after reviewing the claims file and pertinent medical history that the Veteran's hypertension was not related to military service, as the high blood pressure readings in service were isolated and did not persist over time. The probative value of this opinion is high as it was fully-informed, fully-articulated, and supported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). As such, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. 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). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). To satisfy the first Quartuccio element, 38 U.S.C.A. § 5103(a) compliant notice must notify the claimant that a claim of entitlement to service connection consists of five elements: (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. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Prior to initial adjudication of the Veteran's service connection claim, a letter dated in December 2005 fully satisfied the duty to notify provisions, excepting notice of the degree of disability and effective elements of Dingess. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio, at 187. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). The RO provided the Veteran an appropriate VA examination in June 2010. The examiner diagnosed hypertension and an opinion was rendered by the medical professional following a thorough examination and interview of the Veteran. The examiner obtained an accurate history and listened to the Veteran's assertions. The examiner laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). ORDER Entitlement to service connection for hypertension is denied. REMAND As it relates to the claim of entitlement to an initial compensable disability rating for hearing loss, left ear, the Board notes that the RO, in a June 2010 rating decision, granted service connection for this disability with a noncompensable evaluation effective March 20, 2007. On a statement received in July 2010, the Veteran indicated that he was submitting a notice of disagreement to this issue as he did not feel that 0 percent was sufficient for the level of hearing loss he suffered. The Board finds that the Veteran's statements constitute a notice of disagreement with regard to the June 2010 assignment of a noncompensable rating. A statement of the case has not been issued as it relates to this issue. The Board is required to remand the case for issuance of the statement of the case. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the issue of entitlement to an initial compensable disability rating for hearing loss, left ear. The issue should be certified to the Board only if a timely substantive appeal is received. 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). ______________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs