Citation Nr: 1322559	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  08-23 331	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for hypertension (HTN).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel





INTRODUCTION

The Veteran served on active duty from December 1987 to October 1994 and from May 2002 and October 2004, with additional periods of U.S. Army Reserve service.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO).  

The Board notes that the Veteran filed claims of entitlement to service connection for hearing loss and hypertension following his separation from active service in October 1994.  These claims were denied in a rating decision issued in March 1998, as there was no evidence the Veteran had a diagnosis of either disability.  As the Veteran had a second period of active service, subsequent to the March 1998 denial of service connection, the Board find that his May 2007 claim of entitlement to service connection for hearing loss and hypertension constituted a new claim, and the Board will therefore proceed accordingly.  

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.  


FINDINGS OF FACT

1.  The preponderance of the evidence weighs against a finding that the Veteran has bilateral hearing loss for VA purposes.

2.  The Veteran's hypertension had its onset during service and the symptoms of such have been shown to be continually present since that time.  





CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

2.  The criteria for entitlement to service connection for hypertension have been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

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). 

Certain chronic disabilities, such as hypertension and some organic disease of the nervous system (including hearing loss), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 


Service Connection for Hearing Loss

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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.

The Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim.  The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, as noted by the United States Court of Appeals for Veterans Claims (Court):

[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385 ...For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for 'disability' under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.

Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary).

The Veteran contends that he is entitled to service connection for bilateral hearing loss; as such disability was caused by, or is related to, his active duty service.  

A review of the Veteran's service treatment records (STRs) from his first period of active service from December 1987 to October 1994 shows that at the time of the Veteran's August 1987 enlistment examination the Veteran denied any history of hearing loss or ear, nose, and throat trouble.  On clinical evaluation, the Veteran's ears and drums were found to be normal.  August 1987 audiometry showed puretone thresholds, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
5
5
10
0
LEFT
15
5
0
10
0

The STRs also show that while on active service, he was in a hearing conservation program as he was noted to be routinely exposed to hazardous noise. 

December 6, 1993 audiometry showed puretone thresholds, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
40
20
LEFT
25
20
10
50
40

Repeat audiometry conducted on December 7, 1993 showed puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
20
15
25
15
LEFT
40
30
20
35
25

August 1994 Audiometry showed puretone thresholds, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
5
25
10
LEFT
20
20
10
20
10

Additional STRs show that the Veteran was treated on two occasions for a ear infections in his right ear while on active service; there is no indication that these infections did not resolve with the prescribed antibiotics.  Additionally, a May 1990 emergency treatment record shows that he was treated for a laceration on the outer side of his right ear which did not show any signs of infection and was closed with a steri-strip.  A review of the Veteran's STRs from his May 2002 to October 2004 period of active service, shows that on December 2002 audiometry, puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
20
15
LEFT
10
5
0
10
5

At his May 2004 Medical Board examination, the Veteran reported a history of hearing loss and ear, nose, and throat trouble.  He reported that his hearing had decreased as a result of his duties as a tank mechanic and exposure to loud noise.  He denied seeking any treatment for his hearing loss.  On clinical evaluation, his ears and drums were found to be normal.  Audiometry revealed puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
20
15
LEFT
10
10
5
15
10

The Veteran was afforded a VA audiological evaluation in November 2007.  At that time, he reported a decline in hearing sensitivity while on active service.  He reported military noise exposure during both his first and second periods of active service, as well as non-service occupational noise exposure with the use of hearing protection during the period between the end of his first period of active service, October 1994, and the beginning of his second period of active service, December 2002.  He also reported a history of ear surgery in the form of pressure equalization tubes as a child.  He reported occasional ringing in the ears, but only when working.  Audiometry revealed puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
20
20
LEFT
25
20
15
20
20

Average puretone thresholds were 20 decibels in the right ear and 15 decibels in the left.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 in the left ear.  Otoscopic examination revealed clear canals and intact tympanic membranes.  The examiner stated that audiometric test results revealed normal hearing in both ears and speech recognition scores were quiet good bilaterally.  The examiner opined that as the Veteran's hearing had been found to be normal, he therefore did not have hearing loss as a result of military noise exposure.  Additionally, the Board notes that the audiometry findings do not show that the Veteran has a hearing loss disability for VA purposes.  38 C.F.R. § 3.385

The Board notes that the threshold requirement that must be met in order to establish a claim for service connection is that there must be competent evidence (a medical diagnosis) of a current disability (or one that existed on or after the date of application for service connection).  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Although there is some evidence that the Veteran experienced some hearing loss bilaterally during his first period of active service, there is currently no evidence that shows the Veteran has a "hearing loss" disability in either ear for VA purposes.  38 C.F.R. § 3.385.  

In this regard, the November 2007 VA audiological evaluation found that the Veteran's hearing acuity in both ears was within normal limits.  As the evidence of record does not establish that during the appeal period, the Veteran has been diagnosed with bilateral hearing loss for VA purposes, the Board finds that the Veteran does not have a current disability for which service connection can be granted.  

It is important for the Veteran to understand that the fact that the Veteran was exposed to loud noise during service (which is not at issue) and the fact that his hearing may not be as good as it once was does not necessarily support a finding that the Veteran does not have hearing within a range of "normal" for VA purposes at this time.  The Veteran's hearing, while perhaps not as good as it once was, is still within a range of normal. 

As there is no evidence that the Veteran currently has a bilateral hearing loss disability for VA purposes, entitlement to service connection for hearing loss must be denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

Service Connection for Hypertension

The Veteran claims entitlement to service connection for HTN.  He primarily contends that episodes of elevated blood pressure first manifested in service were early signs of the onset of hypertension.  

The Veteran's contentions of HTN are not clearly documented in his service records.  However, the Board notes that the STRs of record do show elevated blood pressure readings of 135/99, 133/99, and 140/99 taken at the time of the Veteran's May 2004 Medical Board examination.  At that time, the examiner recommended that the Veteran be scheduled for a five day blood pressure watch; however, HTN was not diagnosed at that time and there is no indication from the record that the recommended five day blood pressure watch was conducted.  

On April 1, 2005, the Veteran was afforded a VA examination in connection with a claim for an unrelated disability.  At that time the Veteran's blood pressure was noted to be 151/81.  On April 15, 2005, the Veteran was afforded a Brain and Spinal Cord VA examination in connection with his service-connected back disability.  At that time his blood pressure was noted to be 140/80.  

Postservice VA outpatient treatment records show that in October 2006 the Veteran was seen for an evaluation of several medical conditions.  At that time he reported that he was not taking medication that had previously been prescribed for tremors, which also helped control his blood pressure; however, there is no record indicating when this medication was prescribed and whether it was specifically prescribed to control his blood pressure.  The October 2006 VA treatment record shows that at that time the Veteran's blood pressure was 154/85.  A November 2006 VA treatment record shows that the Veteran was again seen for an evaluation of several chronic conditions.  His blood pressure was noted to be elevated with a reading of 148/96.  HTN was diagnosed and the Veteran was prescribed medication.  Later VA treatment notes of record show that the Veteran's HTN is stable with the prescribed medication.  

The Board acknowledges that service connection may indeed be granted when a chronic disease or disability is not present in service, but there is evidence of continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  

The Veteran has asserted that the findings of elevated blood pressure on his May 2004 Medical Board examination show that his HTN had its onset while he was on active service.  While an official diagnosis of HTN was not made while the Veteran was on active service, nor was such a diagnosis made within the one year presumptive period as outlined under 38 C.F.R. §§ 3.307, the Board nevertheless finds that competent, credible, and probative medical evidence of record establishes that HTN first manifested on active service, and has persisted since that time.  In this regard, the Board notes that since his October 2004, and prior to the Veteran's November 2006 official HTN diagnosis, there were several findings of elevated blood pressure.  The sole negative evidence of record, the lack of a HTN diagnosis in service or within the one year presumptive period, is not probative in light of the evidence of continuity of symptomatology documented in the post-service treatment records.  

In sum, based on the findings of elevated blood pressure in service, and the medical records documenting continued elevated blood pressure since separation, the Board finds that service connection should be granted based upon continuity of symptomatology.  The appeal is granted.  

Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA 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); 38 C.F.R. § 3.159(b).  In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  The letter also informed the Veteran how disability ratings and effective dates were established.  

Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the Veteran's service treatment records and pertinent postservice treatment records and the Veteran was afforded an appropriate VA audiological evaluation in November 2007.  Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his 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).

ORDER

Entitlement to service connection for bilateral hearing loss is denied. 

Entitlement to service connection for hypertension is granted.  


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs