Citation Nr: 1321932 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 09-01 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for bilateral hearing loss. WITNESSES AT HEARING ON APPEAL Appellant, spouse, and son ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to May 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision of the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2013, a hearing was held before the undersigned in Albuquerque, New Mexico. A transcript of the hearing is available for review. The question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has characterized the Veteran's claim of service connection for hypertension accordingly. The issues of service connection for hearing loss and hypertension are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. Service connection for hypertension was denied by the RO in an April 2002 rating action on the basis that hypertension was not found to have been manifested during service or within one year thereafter. The Veteran was notified of that decision and of his appellate rights, but did not file a timely appeal. 2. Since the April 2002 decision denying service connection for hypertension, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The additional evidence received subsequent to the April 2002 decision of the RO that denied service connection for hypertension is new and material and the claim for, service connection for hypertension is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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 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) (2012). 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 C.F.R. § 3.303(d) (2012). Where a veteran who served for ninety days or more during a period of war, or during peacetime service after December 31, 1946, develops certain chronic diseases, such as hypertension, to a degree of 10 percent or more within one year from separation from service, the disease may be presumed to have been incurred in service even though there is no evidence of the disease during the period of service. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether the requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a) (2012). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived were experienced directly through the senses. 38 C.F.R. § 3.159 (2012) (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). VA must consider the competency of the lay evidence and cannot outright reject lay evidence on the basis that lay evidence can never establish a medical diagnosis or nexus. However, that does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to make that finding. The Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. 38 U.S.C.A. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510 (1992). Service connection for hypertension was previously denied by the RO in an April 2002 rating decision. The Veteran did not appeal that decision. Therefore, it must first be determined whether or not new and material evidence has been received such that the claim may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). Evidence of record at the time of the April 2002 decision that denied service connection for hypertension included the Veteran's service medical records that showed normal blood pressure at the time of entry into service and an examination in December 1971, prior to separation from service, that showed a blood pressure reading of 138/86. No contentions related to post-service manifestations of hypertension were made and no additional medical evidence was of record. Evidence received subsequent to the April 2002 rating decision that denied service connection for hypertension includes medical literature showing that a blood pressure reading of 138/86 could represent an early manifestation of hypertension and the Veteran's testimony that he first manifested hypertension in service and continuously thereafter. For the purpose of determining whether evidence is new and material to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board finds the medical literature and testimony of the Veteran and his witnesses constitutes new and material evidence such that the claim may be reopened. That new evidence relates to a previously unestablished element of the claim, a showing of an event, injury, or disease in service. Thus, the new evidence is material. Therefore, the claim is reopened. To that extent only, the appeal is allowed. ORDER New and material evidence having been received, the claim of service connection for hypertension is reopened. To that extent only, the appeal is granted. REMAND Having decided that the claim of service connection for hypertension is reopened, the claim must now be considered on all the evidence on file. The next question is whether the Board can conduct a de novo review without prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that additional development is warranted the claim for service connection for hypertension must be remanded. The Veteran is claiming service connection for bilateral hearing loss and hypertension. After review of the record, the Board finds that further development of the record is necessary. Regarding the Veteran's claim of service connection for hearing loss, the Veteran contends that his hearing loss is related to military noise exposure that occurred while he was in combat during service. He, his spouse, and his son have testified at the Board hearing in March 2013 that he has had symptoms of hearing loss continuously since his discharge from service. The Board notes that the Veteran was afforded a VA examination to ascertain whether the current hearing loss may be related to service. That examination, which was conducted in September 2006, included a medical opinion that it was less likely than not that current hearing loss was related to military noise exposure during service. The rationale for that opinion was that the Veteran's hearing loss had a conductive component that needed to be addressed by an ear, nose, and throat specialist and that his hearing sensitivity could improve after medical management. It was noted that the Veteran had a disputed pre-induction hearing test that might have shown a conductive hearing loss that could have been related to a history of otitis media that had cleared up by the time the Veteran separated from service, as shown on a normal audiometric testing at the time he separated from service. Since the September 2006 negative nexus opinion, private treatment records provided in support of the Veteran's claim indicate the Veteran has been diagnosed with sensorineural hearing loss. The VA examination did not specifically address any relationship with sensorineural hearing loss. The Veteran's assertions of continuity of symptomatology since service were also not addressed. Even though disabling hearing loss may not be demonstrated at separation, a Veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). Taking into account the Veteran's statements in support of his claim, and VA treatment reports of record which note that the Veteran has a current diagnosis of sensorineural hearing loss, the Veteran's claim of service connection should be remanded for an additional VA examination to determine whether any currently diagnosed hearing loss is etiologically related to his period of active service. With regard to the VA audiological examination, the examiner must not rely solely on the fact that the Veteran's hearing was within normal limits for VA purposes at the time of separation from service when forming an opinion. Hensley v. Brown, 5 Vet. App. 155 (1993). Regarding the Veteran's claim for service connection for hypertension, he contends that he first manifested high blood pressure during service and has had continuous symptoms since service separation. He noted that at the time of his pre-separation examination in December 1971 a blood pressure reading of 138/86 was recorded. The Veteran has submitted medical literature showing such a blood pressure reading to be "prehypertension." He asserts that reading constitutes an early manifestation of hypertension. He has not been afforded a VA examination to ascertain the viability of that contention. An examination should be arranged. In disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, these issues are REMANDED for the following actions: 1. Schedule a VA audiological examination to assess the nature and etiology of hearing loss. The examiner must review the claims file and must note that review in the report. All necessary diagnostic testing and evaluation needed to make the determinations should be performed. The examiner should provide clear rationale for the opinion with references to the evidence of record and provide a discussion of the facts and medical principles involved. The examiner should address the following: a. The examiner should state whether there is clear and unmistakable evidence that any hearing loss existed prior to the Veteran's period of active military service. If so, then this examiner must then also indicate whether there is clear and unmistakable evidence the disability was not aggravated during or by the Veteran's service beyond the natural progression of the disability. b. The examiner should opine Whether it is at least as likely as not that any identified hearing loss is at least as likely as not (50 probability percent or more) etiologically related to service. 2. Schedule the Veteran for a VA medical examination to ascertain the nature and etiology of hypertension. The examiner should render an opinion regarding whether it is at least as likely as not (50 probability percent or more) that hypertension is related to service. The examiner should specifically address the Veteran's contentions that the blood pressure reading of 138/86 at service separation represented an early manifestation of hypertension. The examiner must review the claims file and must note that review in the report. The examiner should provide a complete rationale for all conclusions reached. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs