Citation Nr: 1319688 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 07-05 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for entitlement to service connection for hypertension. In March 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and is associated with the claims folder. In December 2009, the Board remanded the claim for further development. The claim was again remanded in July 2011 and March 2013. FINDING OF FACT The competent and credible evidence fails to show that the Veteran's hypertension is due to service or due to, caused by, or aggravated by his service-connected bilateral hearing loss or tinnitus. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, nor is it secondary to service-connected bilateral hearing loss or tinnitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by way of May 2006 and May 2007 letters sent to the Veteran. The letters fully addressed all notice elements in these matters. They informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The RO also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO effectively satisfied the notice requirements with respect to the issue on appeal. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO associated the Veteran's service treatment records, VA treatment records, and private medical statement with the claims file. No outstanding evidence has been identified. The Veteran underwent a VA examination in June 2010 and there were addendums of August 2011 and April 2013 in connection with this claim. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination and addendums were adequate, as they were predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided a rationale for the opinions stated, relying on and citing to the records reviewed. The Veteran was offered a Board hearing in connection with this claim and he testified at a videoconference Board hearing in March 2009. 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) requires that the RO Decision Review Officer or VLJ who chairs a hearing fulfill two duties to comply with the above 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, the undersigned VLJ identified the issue on appeal. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Specifically, she provided the Veteran the opportunity to obtain additional medical evidence in support of his claim. Therefore, not only were the issues "explained in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, compliance was made with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board can adjudicate the claim based on the current record. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran asserts that his inservice military occupational specialty (MOS) as a Morse Interceptor Operator resulted in his development of hypertension. He also maintains, in the alternative, that he incurred the disorder as a result of his service-connected bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including hypertension, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, the disorder at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Hypertension is rated under 38 C.F.R. § 4.101, Diagnostic Code 7101, which provides that a 10 percent rating is warranted for diastolic pressure predominately 100 or more; systolic pressure predominately 160 or more, or if there is a history of diastolic pressure predominately 100 or more and the individual requires continuous medication for control. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a) (2012); see also Allen v. Brown, 7 Vet.App. 439, 448 (1995). Under the current version of 38 C.F.R. § 3.310, VA will not concede such aggravation unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The RO will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (rating schedule) and determine the extent of aggravation by deducting the baseline level of severity as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(a) (2012). The Board notes that there has been an amendment to the provisions of 38 C.F.R. §3.310during the pendency of the Veteran's claim. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. 3.310 (2012)). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. VA made it clear in the comments to the regulation that the 2006 changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. §3.310in effect before the revision, which version favors the claimant. 38 C.F.R. §3.310 (2006). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records are devoid of findings, treatment, or diagnosis for hypertension. On entrance examination, the Veteran's blood pressure reading was 126/72. In November 1966, his blood pressure reading was 110/70. On separation examination, the blood pressure reading was 116/84. In November 2005, VA treatment records show that the Veteran had been diagnosed with hypertension since the mid 1990's. It was also noted that he had a strong family history of heart disease. In August 2007, the Veteran submitted treatises and internet articles which indicated, in pertinent part, that there was a correlation between an increase in blood pressure and exposure to high levels of noise. One article specifically indicated that sound levels capable of causing hearing loss were also known to induce hypertension. None of the articles were specifically related to the Veteran or that hypertension was induced after the high levels of noise had stopped. The Veteran was seen by VA in October 2007 for management of his blood pressure and lipids. He stated at that time that he believed his blood pressure was elevated because of his stress at work. The Veteran testified at a videoconference Board hearing before the undersigned VLJ in March 2009. The Veteran asserted that his noise exposure in service as a Morse Interceptor Operator was the cause of his hypertension. He stated that his blood pressure rose during service and that he was ultimately diagnosed with hypertension. He related that at least one examiner indicated that his hypertension was caused by his hearing loss. In March 2009, the Veteran's VA examiner (physician's assistant) indicated that it was at least as likely as not that the Veteran's hypertension was related to his loud noise exposure as a Morse Code Interceptor Operator while on active duty. No rationale was provided for this opinion. The Veteran underwent a VA examination in June 2010. The Veteran gave a history of a MOS as a Morse Interceptor Operator during service. He was diagnosed with hypertension in the mid 1990's and alleged that he was exposed to excessive radio transmission and subsequently was diagnosed with hearing loss and service-connected for the same. Service treatment records showed normal blood pressure readings throughout service and normal EKGs in 1966 and 1967 for flight physicals. It was also noted by the examiner of the Veteran's medical history of a strong family history of heart disease. The examiner indicated that the Veteran's hypertension was not caused by or a result of exposure to noise in service. The rationale for this finding was that the Veteran had no diagnosis of prehypertension or hypertension in service. The record showed a diagnosis of hypertension in the mid 1990's, at which time the Veteran had multiple other medical issues, including two bouts of kidney stones in the 1970's, chronic back pain, and chronic knee pain, all off which would tend to increase his blood pressure. The examiner also stated that the Veteran's hypertension was not related to his active service as a Morse Interceptor Operator, nor did it chronically worsen as a result of his service-connected bilateral hearing loss for the aforementioned reasons and because the Veteran's hypertension did not manifest until three decades post service and in the context of chronic pain. In January 2011, the Veteran was seen privately for his bilateral hearing loss. The audiologist indicated, in pertinent part, that the stress the Veteran experienced as a Morse Interceptor Operator, his high frequency hearing loss, and constant tinnitus, could be a contributing factor to his high blood pressure. No rationale for these findings were provided. In August 2011, an addendum to the Veteran's June 2010 VA medical opinion was made. The claims file was reviewed, in connection with the January 2011 private audiologist's comments on the etiology of his hypertension. The examiner indicated, in pertinent part, that the private audiologist's letter documented what appeared to be a onetime visit. The only history that the audiologist related was that the Veteran was in the Air Force. He reported excessive exposure to radio transmissions, radio equipment and jamming noises, while performing his duties as a Morse Interceptor Operator, indicating that the high frequency hearing loss and tinnitus could have been a contributing factor to his high blood pressure. The private audiologist did not appear to know, according to the VA examiner, that the Veteran's hypertension manifested 3 decades after service separation, and in the context of intervening chronic low back pain, shingles, renal lithiasis, and chronic testicular pain. Another addendum, in April 2013, was associated with the claims folder. This addendum was provided by the same examiner who submitted the August 2011 addendum. This examiner stated that it was less likely as not that the Veteran's hypertension was either caused, or aggravated by service, or caused or aggravated by his service-connected disability to include his bilateral hearing loss and/or tinnitus. The examiner gave essentially the same rationale as provided in August 2011, except he clarified that the multiple medical issues that the Veteran had in the 1990's when he was diagnosed with hypertension, were all of a nature that would tend to increase his blood pressure. He also indicated that the Veteran's hypertension was manifested in the context of pain, and that the Veteran's only service-connected disabilities, are bilateral hearing loss and tinnitus. Service treatment records are devoid of findings, treatment, or diagnosis for hypertension. Indeed, the Veteran reports that his hypertension had its onset after service although he is only able to indicate that it was sometime in the mid 1990's. This is more than 20 years post service. There is no evidence establishing an etiological link between the Veteran's active service and his hypertension. Entitlement to service connection for hypertension on a direct basis (38 C.F.R. § 3.303) or presumptive basis (38 C.F.R. §§ 3.307, 3.309) is therefore not warranted. The Veteran does not argue the contrary. Rather, he asserts that he has hypertension due to his service-connected bilateral hearing loss. In order to establish service connection for a claimed disability on a secondary basis, there must be: (1) medical evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin, supra. With respect to Wallin element (1), the record is clear that the Veteran has hypertension. As to Wallin element (2), the Veteran does have service-connected disabilities, bilateral hearing loss and tinnitus. The Veteran claims that his bilateral hearing loss is the cause of his hypertension. However, as to Wallin element (3), the preponderance of the evidence is against the findings that the Veteran's hypertension is related to a service-connected disability. Although it is not clear from the record when he was exactly diagnosed with hypertension, it is clear it was in the 1990's, many years after service discharge. Additionally, the Veteran has presented many treatise and internet articles showing a correlation between hearing loss and an increase in blood pressure. Although the Veteran claims that his hypertension was caused by noise exposure, there was no indication in service that his blood pressure increased at any time during service. After service, and when he was no longer exposed to excessive noise, more than 20 years later, is when the onset of his hypertension occurred. None of the articles presented by the Veteran shows that his hypertension is aggravated by his hearing loss. Moreover, the articles presented were not specific to his condition and no examiner has correlated any events in those articles specifically to his hypertension. Although his VA primary care examiner (physician's assistant) attributed his hypertension to loud noise exposure, no rationale was given by the examiner for this conclusion. However, a June 2010 VA examination opinion, with August 2011 and April 2013 addendums clarifying his opinion, indicated that it was less likely as not that the Veteran's hypertension was caused by, a result of, or aggravated by service, or caused or aggravated by his service-connected bilateral hearing loss or tinnitus. This opinion, with rationale, indicated that the Veteran's hypertension was diagnosed more than three decades after service discharge at a time when he had multiple medical issues which would tend to increase his blood pressure. He also has not indicated that the Veteran's only two service-connected disabilities, bilateral hearing loss and tinnitus, have aggravated the Veteran's hypertension. He stated that hypertension is common and there is a 30 percent incidence of the disease in the population 18 years and older. In light of these findings, the examiner opined that it is less likely as not that the Veteran's essential hypertension was caused by, a result of, secondary to, proximately due to or aggravated by his service-connected bilateral hearing loss or tinnitus. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Veteran is competent to report that he noticed/observed/experienced symptoms related to hypertension in connection with his service-connected bilateral hearing loss, the Board must still weigh his lay statements against the medical evidence of record. Layno v. Brown, 6 Vet. App. at 465. In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("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."). Because hypertension is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's unsubstantiated statements regarding the claimed etiology of his hypertension is found to lack competency. The Veteran's lay opinion and the opinion of his VA physician assistant and the private audiologist are outweighed by the VA June 2010 professional opinion and the August 2011 and April 2013 addendums. The June 2010 VA examination included a physical examination of the Veteran, a review of the record, and provided a rationale for the negative findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion). The VA physician assistant did not provide a rationale for her March 2009 opinion and the private audiologist gave his opinion without indicating that he knew of the onset of the Veteran's hypertension more than 20 years after service. He only indicated that the stress of a job of a Morse Interceptor Operator "could" be a contributing factor to the Veteran's high blood pressure. The opinion indicating "could" be a contributing factor is at best speculative. The Court has held that medical opinions expressed in speculative language do not provide the degree of certainty required for medical nexus evidence. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998)(quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)). Therefore, the private audiologist's January 2011 statement, has little, if any, probative value. Clearly, the medical opinion of a physician outweighs that of the Veteran. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (an evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached). Thus, as a nexus between the Veteran's claimed hypertension and his service-connected bilateral hearing loss or tinnitus has not been established, either through medical evidence or the Veteran's statements, Wallin element (3), medical nexus, has not been satisfied, and the claim fails on this basis. For the foregoing reasons, service connection for hypertension, claimed as secondary to service-connected bilateral hearing loss, is denied. ORDER Service connection for hypertension, to include as secondary to bilateral hearing loss, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs