Citation Nr: 1318152	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  09-26 764	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for hypertension.

3.  Entitlement to service connection for a pulmonary disease, to include chronic obstructive pulmonary disease (COPD).


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel


INTRODUCTION

The Veteran had active military service from July 1967 to August 1970.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Muskogee, Oklahoma, that denied the Veteran's claims for service connection for posttraumatic stress disorder (PTSD), including as due to exposure to herbicides, hepatitis C, bilateral hearing loss, COPD, and hypertension.  The Veteran perfected an appeal as to the RO's decision.

In a November 2010 rating decision, the RO granted the Veteran's claim for service connection for PTSD.  The RO's determination represents a full grant of the benefits sought as to the Veteran's claim for service connection for PTSD.

In August 2012, the Veteran testified at a hearing conducted via videoconference with the undersigned.  A transcript of the hearing is of record.  There were extensive disruptions of audio noted in the hearing transcript.  In an October 2012 letter, the Board explained the situation to the Veteran and offered him the opportunity to testify during an additional hearing.  He was advised that, if he did not respond within 30 days, it would be assumed that he did not want another hearing.  The Veteran did not respond to the Board's.  The Board finds that all due process requirements were met regarding the Veteran's hearing request.

In a March 2013 rating decision, the Appeals Management Center (AMC) granted service connection for hepatitis (previously claimed as hepatitis C and hepatitis with liver and spleen damage).  The AMC action represents a full grant of the benefits sought as to the Veteran's claim for service connection for hepatitis C.  As such, the Board will confine its consideration to the issues as set forth on the title page.

The matter of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC.


FINDINGS OF FACT

1.  Bilateral hearing loss existed prior to the Veteran's entrance into active service and was aggravated during service. 

2.  A pulmonary disease, including COPD is unrelated to the Veteran's period of active military service, including exposure to Agent Orange. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss are met.  38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012).

2.  The criteria for service connection for a pulmonary disease, to include COPD, are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1113, 1137, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 
  
Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim.  38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1) (20).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In January 2008, June 2010, and December 2012 letters, the agency of original jurisdiction (AOJ) notified the Veteran of information and evidence necessary to substantiate his claims.  He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide.  In the January 2008 letter, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The AOJ satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b).  

In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, this Veterans Law Judge outlined the issues on appeal and suggested that any evidence tending to show that pertinent disability was related to active duty or a service-connected disability would be helpful in establishing the claims.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing.

VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. 
§ 3.159(c).  His service treatment and personnel records and VA and private records have been associated with the claims file, to the extent available.  All reasonably identified and available medical records have been secured.  A review of the Veteran's Virtual VA electronic file shows VA treatment records, dated to December 2012, also considered by the Board in the claims on appeal.

The Board's December 2012 remand was, in part, to provide the Veteran with a proper VCAA notice letter regarding his claim for service connection for hypertension on a secondary basis and afford him an opportunity to undergo VA examinations.  There has been substantial compliance with this remand, he was sent a requisite duty to assist letter in December 2012, VA medical records, dated to December 2012, were obtained, and he was scheduled for VA examinations in January 2013.  

The January 2013 VA examination reports are adequate for rating purposes as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered etiological opinions with rationale from which the Board can reach a fair determination.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Board finds the duties to notify and assist have been met. 

II. Factual Background and Legal Analysis

Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service.  

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be applied only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a)).  

Nevertheless, the regulations also provide that 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).  Moreover, 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, (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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

To establish a right to compensation for a present disability, a veteran must show: "(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" - the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  This is a direct service connection theory of entitlement.  

Certain chronic diseases, such as sensorineural hearing loss (as a disease of the central nervous system), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  This is also a direct service connection theory of entitlement.

Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  

However, although the Veteran is competent in certain situations to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of hearing loss and lung pathology.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A. Bilateral Hearing Loss

In written statements and oral testimony in support of his claim, the Veteran asserts that he has bilateral hearing loss related to his period of active service.  Upon review of the evidence of record, and after considering the laws and regulations applicable to the Veteran's claim, the Board finds that service connection is warranted.

Hearing loss disability is defined by regulation.  For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

In Hensley v. Brown, 5 Vet. App. 155 (1993), the court stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Id. at 159.  The court explained that when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service.  Id. at 160.  The court cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Id. at 157. 

The Veteran is competent to describe his difficulty hearing over the years, that he can perceive, but hearing loss for the purpose of VA disability compensation is not a condition capable of lay observation because it relies upon audiometric testing. Savage v. Gober, 10 Vet. App. 488 (1997); Barr v. Nicholson, 21 Vet. App. 303 (2007). 

A veteran is presumed in sound condition except for defects noted when examined and accepted for service.  Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304; VAOPGCPREC 3-2003.  This statutory provision is referred to as the "presumption of soundness."  Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). 

Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service.  See Gilbert v. Shinseki, No. 11-2355, 2012 WL 5233422, at *6 (Vet. App. October 24, 2012); see also 38 C.F.R. § 3.304(b) ("Only such conditions as are recorded in examination reports are considered as noted."). 

In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service.  The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). 

In sum, the law as interpreted under Cotant v. Principi, 17 Vet. App. at 116 and VAOPGCPREC 3-2003 mandates that, to rebut the presumption of sound condition upon entry into service under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See Wagner v. Principi, 370 F.3d. at 1096.

Aggravation is not conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). 

Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  Thus, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required.  Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). 

In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) it was clarified that the presumption applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders."  38 U.S.C. § 1111.  Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based-here, the period of inactive duty for training.  See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). 

The Veteran has current bilateral hearing loss.  In this regard, private medical records and the report of a VA examination in January 2013 show that he was diagnosed with bilateral sensorineural hearing loss and that disability was demonstrated as defined by 38 C.F.R. § 3.385.  

Service treatment records reflect that, on audiological evaluation during the Veteran's examination for enlistment in June 1967, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
-5

50
LEFT
5
0
5

50

(NOTE: It was not specified whether the audiometric results were reported in standards set forth by the American Standards Association (ASA) or standards have set by the International Standards Organization (ISO)-American National Standards Institute.  Regardless of the standard used, the Veteran had hearing loss as defined by VA on the entrance examination) 

The Veteran's 1967 examination report completed for his entry into service does note a finding of hearing loss; hence the presumption of soundness does not attach.  See Smith, 24 Vet. App. at 45; cf. 38 U.S.C.A. § 1111 (West 2002).

The next step of the inquiry is to determine whether the pre-existing hearing loss disability was aggravated in service.  A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition.  VAOPGCPREC 3-2003.

The Veteran's service records show that his military occupation was kitchen helper (cook) and that he served in Vietnam during the Vietnam Era.

Service treatment records reflect that, on audiological evaluation during examination prior to separation, in July 1970, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15

15
LEFT
10
15
15

15

A December 4, 1986 signed statement from R.E.W., M.D., an otolaryngologist, indicates that the Veteran was examined for complaints of hearing loss and gave a history of exposure to acoustic trauma in service.  Dr. W. reported that audiometric studies showed moderately severe sensorineural hearing loss in the right ear and normal hearing in the left ear.  A right ear hearing aid was advised for the Veteran.

In January 2013, the Veteran underwent VA audiological examination.  According to the examination report, the examiner reviewed the Veteran's medical records and performed a clinical evaluation that showed bilateral hearing loss consistent with VA regulations.  The VA examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or related to service.  She explained that his separation exam showed no evidence of shift in hearing sensitivity while in military service.  It was noted that the Veteran reported a 30+ year history of working in construction and a recreational history of hunting with a gun both without hearing protection.  

The examiner further opined that the Veteran's bilateral hearing loss existed prior to service and that the pre-existing hearing loss was aggravated beyond normal progression in military service.  Her rationale was that high frequency hearing loss was noted in both ears at entrance to military service.

While the basis for the examiner's opinion was not well explained, there was a shift in the Veteran's hearing at frequencies below 4000 Hz.  The probative evidence of record demonstrates that the Veteran had bilateral hearing loss that existed prior to his entry into active service and the January 2013 VA examiner opined that the hearing loss was aggravated beyond its normal progression during service.  There is no contrary opinion.  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted and his claim is granted.  38 U.S.C.A. §§ 1110, 1111, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.385.  Gilbert v. Derwinski, supra.

B. COPD

The Veteran asserts that he has COPD that is due to his military service, including exposure to Agent Orange.  He reports that he has had symptoms consistent with COPD since returning from Vietnam and that he believes his disorder is due to his exposure to Agent Orange.  Thus he maintains that service connection is warranted for COPD.

Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure.  38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. 

If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and sub acute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e).  

Specifically, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for enumerated other disorders, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See, e.g., Veterans and Agent Orange Update: Update 2010 (Update 2010), 77 Fed. Reg. 47924-8 (Aug. 10, 2012).  See also Veterans and Agent Orange Update: Update 2008 (Update 2008), 75 Fed. Reg. 81,332 -335 (Dec. 27, 2010); Veterans and Agent Orange: Update 2006 (2007); Notice, 68 Fed. Reg. 27,630 -41 (May 20, 2003); 72 Fed. Reg. 32,395-407 (June 1, 2007); and Notices at 61 Fed. Reg. 57,586 -589 (1996); 64 Fed. Reg. 59,232 -243 (1999); and 67 Fed. Reg. 42,600 -608 (June 24, 2002). 

Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation.  Stefl v. Shinseki, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  Thus, presumption is not the sole method for showing causation. 

In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements.  First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service.  See Brock v. Brown, 10 Vet. App. 155, 162 (1997). 

The Veteran's service records show that he served in the Republic of Vietnam from March 1969 to November 1970.  Therefore, he is presumed to have been exposed to herbicides during active duty. 

The next question is whether the Veteran has a disease or disorder that is positively associated with exposure to Agent Orange or is otherwise related thereto.  COPD is not among the listed diseases subject to presumptive service connection on the basis of Agent Orange.  38 C.F.R. § 3.309(e). There is no competent opinion linking current COPD to Agent Orange exposure.  Although the Veteran contends that he has COPD as the result of such exposure, this is a complex medical scientific question that would not be subject to lay observation.  See 38 U.S.C.A. § 1116(b) (West 2002) (providing that presumptive service connection for conditions due to Agent Orange will be based on scientific reports from the National Academy of Sciences).  The Veteran's opinion does not constitute competent evidence of a link between COPD and Agent Orange.

The Veteran's service treatment records do not discuss complaints or treatment for, or diagnosis of, COPD.  On a Report of Medical History completed in July 1970, prior to separation from active service, the Veteran denied having shortness of breath, pain or pressure in his chest, or a chronic cough.  On examination at that time, his lungs and chest were normal, and a chest x-ray was negative.

Post service, COPD was first reported in a June 2000 VA outpatient progress note that describes the Veteran's symtoms of shortness of breath, decreased stamina, and a persistent productive cough.  It was noted that he smoked 1/2 pack of cigarettes per day.  Upon review of a chest x-ray and other diagnostic tests, COPD was diagnosed.  Subsequent VA medical records reflect the Veteran's treatment for COPD.  In November 2007, it was noted that he still smoked but knew he should quit.

In January 2013, the Veteran underwent VA examination.  According to the examination report, the examiner reviewed the Veteran's medical records and performed a clinical evaluation that showed the Veteran had COPD.  The Veteran had a history of COPD first diagnosed in June 2000.  He had a history of smoking 1/2 to 3/4 pack of cigarettes per day, started smoking at the age of 7, and continued to smoke to the present.  The Veteran had a daily productive cough, shortness of breath, and dyspnea on exertion.  

In the VA examiner's opinion, the Veteran's lung disease was "classic COPD associated with lifelong tobacco use", that was a problem of epidemic proportions in the United States.  The examiner noted that the Veteran's tobacco exposure history stretched back over 60 years. The Veteran had a steady progression of his respiratory symtoms as was to be expected in such a situation, was repeatedly warned of the ill effects of tobacco, and attempted tobacco-use cessation without success.  The VA examiner stated that patients that continued to use tobacco products could expect to have higher incidences of lung cancer, atherosclerosis/hardening of the arteries, emphysema, respiratory failure, and early death.  

According to the VA examiner, there was nothing in this Veteran's history to suggest other agents had anything to do with what was a very common process.  The VA examiner opined that it was less likely as not that the Veteran's chronic lung disease/COPD/respiratory disability was related to his military experience or Agent Orange, and more likely as not that it was related to his lifelong tobacco smoking.

The Veteran is competent to describe his observable symptoms, such as coughing and breathing difficulty.  To the extent he is claiming that breathing problems have persisted since service, this is inconsistent with his reports at the time of his separation from service, the normal examination at the time of separation from service, and the fact that he did not report COPD when he filed his initial claim for VA benefits in 1982.  The Veteran first reported a pulmonary disease in 1984, when he claimed service connection for pneumonia.  As recently as a VA psychiatric examination in September 2010, he reported COPD as a condition occurring after service (and did not apparently mention pneumonia).  Hence, his reports of symptoms beginning in service and continuing since are not deemed credible.  Moreover, COPD is not among the listed chronic diseases, and a continuity of symptomatology could not establish a link between that disease and service.  Walker.  (Service connection for pneumonia has previously been denied, and there is no evidence, claim or contention during the current appeal that the Veteran has residuals of pneumonia).

The only medical opinion of record is that of the VA examiner, who in January 2013, opined that it was less likely than not that the Veteran's COPD was related to his military service, including his exposure to Agent Orange.  The examiner provided a clear rationale to support his findings.  There is no medical opinion of record to contradict the VA examiner's opinion.

In sum, a clear preponderance of the evidence of record is against the Veteran's claim for service connection for COPD, including as due to exposure to Agent Orange, and his claim must be denied.  The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim.  Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001).



						(CONTINUED ON NEXT PAGE)
ORDER

Service connection for bilateral hearing loss is granted.

Service connection for a pulmonary disease, to include COPD is denied.


REMAND

The Veteran also seeks service connection for hypertension including as due to his service-connected PTSD.  As noted, service connection for PTSD was granted by the RO in a November 2010 rating decision and assigned an initial 50 percent disability rating, effective from November 2007.

Disability that is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310 (2012).  The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995) 

In its December 2012 remand, the Board noted that VA recognized that there is some evidence to indicate that PTSD is related to cardiovascular disorders, and studies found an association between PTSD and poor cardiovascular health.  See www.ptsd.va.gov/professional/pages/ptsd-physical-health.asp.  There is also medical literature suggesting a link between PTSD and hypertension.  See A. McFralane, "The Long Term Costs of Traumatic Stress: Intertwined Physical and Psychological Consequences", World Psychiatry, February 9, 2010, at 3-10.  

Thus, the Board remanded the Veteran's claim for VA examination to determine if there was a relationship between his diagnosed hypertension and service-connected PTSD.

In January 2013, a VA examiner reported that hypertension was not documented in the Veteran's service treatment records and several blood pressure recordings were normal.  The first diagnosis of hypertension in the Veteran's records was from 1999, 29 years after his discharge from active service.  

The VA examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by active service.  The examiner stated that the Veteran's "PTSD does not correlate with his diagnosis of hypertension nor with the worsening of his blood pressure problem".  The examiner noted that, at the time of the Veteran's greatest stress, while in the stockade and when dismissed from service for being "unsuitable" and a "non-effective soldier", his blood pressure was 120/64 on July 22, 1970 (when examined for separation). 

The VA examiner commented that the Veteran had "a multitude of unhealthy life-long lifestyle choices and genetic factors (lipids) to account for his hypertension and progression of same.  The Veteran had 60 years of smoking (starting at age 7), hyperlipidemia, and alcoholism ("drinking problem"; "boot came to 1996").

The January 2013 VA opinion does not appear to explain why the Veteran's hypertension was attributable to lifestyle factors rather than PTSD or discuss the studies suggesting some link between PTSD and hypertension.  Therefore, clarification is required. 

Accordingly, the case is REMANDED for the following action:

1. The RO/AMC should refer the Veteran's claims folder and a copy of this Remand to a suitably qualified VA examiner (preferably a psychiatrist or cardiologist) who has not previously provided an opinion.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. 

The examiner should answer the following questions, based on review of the evidence of record:

a. The examiner should indicate whether any diagnosed hypertension is likely as not (50 percent probability or greater) related to the Veteran's active service. 

b. If not, is the hypertension disorder at least as likely as not caused or aggravated by service-connected PTSD?  If aggravated, is there medical evidence created prior to the aggravation, or between the time aggravation and the current level of disability that shows a baseline for hypertension prior to the aggravation? 

c. The examination report should include reasons for all opinions.  In answering the questions posed in part b. above, the examiner should discuss relevant medical or scientific literature.

2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC).  The case should then be returned to the Board if otherwise in order.

No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2012).

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).




______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs