Citation Nr: 1323426 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 06-26 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for arterial hypertension (claimed as high blood pressure). 2. Entitlement to service connection for arterial hypertension. 3. Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to August 1967 and from February 2003 to August 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In January 2012, the Board remanded these issues to the RO via the Appeals Management Center (AMC) for additional development. The issues have been properly returned to the Board for appellate consideration. FINDINGS OF FACT 1. Puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) have been no higher than 25, 25, 15, 15, and 30 (decibels) dB, respectively, for the right ear, and no higher than 25, 20, 20, 25, and 15 dB, respectively, for the left ear; speech recognition scores have been no lower than 96 percent for both ears. 2. In an unappealed February 2005 rating decision, the RO denied service connection for hypertension; no new and material evidence was received within the appeal period. 3. Evidence, previously not of record, added to the claims file after the February 2005 decision, relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for hypertension and raises a reasonable possibility of substantiating that claim. 4. The Veteran's hypertension did not have onset during his period of active service from October 1965 to August 1967, was not caused by that period of active service, to include exposure to Agent Orange, and did not manifest within one year of separation from that period of active service. 5. Hypertension was noted at acceptance onto the period of active service beginning in February 2003. 5. Hypertension did not permanently increase in disability during the period of active service that began in February 2003. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss in either ear have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012) 2. The February 2005 rating decision, in which the RO denied service connection for hypertension, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1100 (2012). 3. The criteria for reopening a claim of entitlement to service connection for arterial hypertension have been met. 38 U.S.C.A. § 5108 (West 2012); 38 C.F.R. § 3.156 (2012). 4. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). 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). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Particularized notice is required for claims to reopen previously denied claims. Kent v. Nicholson, 20 Vet. App. 1 (2006). In addition to notice of the evidence needed to substantiate the underlying claim of entitlement to service connection, notice is required as to the evidence necessary to reopen the claim. Id. In March 2012, the Board remanded the hypertension issues for the RO to provide the Veteran with the particularized notice as explained in Kent. In February 2012, the RO sent him a letter in an effort to comply with the Board's directive. The RO misidentified the last final decision, the decision dated in February 2005, as the most recent decision, the decision dated in September 2008. The RO also provided incorrect notice, failing to specify all unestablished facts of which new and material evidence would require VA to reopen the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (explaining that material evidence is not merely evidence relating specifically to the reasons the claim was last denied but rather to any unestablished fact necessary to substantiate the claim). Although the notice with regard to reopening was incorrect, and therefore the RO did not comply with the Board's March 2012 Remand in that regard, the error is harmless because the Board here reopens the claim, as the RO implicitly did in the September 2008 rating decision. The purpose of that particularized notice has therefore been served and no corrective action is necessary. In letters sent to the Veteran in April 2006, sometime after April 2006 (but dated in March 2006), and in February 2012, the RO provided the Veteran adequate notice as to the evidence necessary to establish service connection for hypertension and hearing loss and of his and VA's respective duties in obtaining such evidence. Any defect in the timing of the notice with regard to how VA assigns disability ratings and effective dates is harmless error because the Board here denies the appeal as to service connection and no effective date or disability rating will be assigned. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review 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, National Guard medical treatment records, VA treatment records, and records associated with a claim for disability benefits from the Social Security Administration (SSA) and the Veteran has submitted private treatment records and statements from laypersons. VA afforded him an adequate audiology examination in February 2012 and obtained an adequate expert opinion as to the hypertension issue in April 2012. The RO complied with the Board's February 2012 Remand directives to obtain VA treatment records for the period following October 2010, provide an examination with regard to the Veteran's claimed hearing loss, and to readjudicate the issues that were then on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). Any non-compliance with regard to the claim of entitlement to service connection for a trigger finger disability is harmless error because service connection was granted for that disability in August 2012. 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 claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. 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). II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus element can be presumed for certain chronic diseases, including hypertension and sensorineural hearing loss (an organic disease of the nervous system), by a showing of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2012). A showing of continuity of symptomatology requires evidence (1) that the condition was "noted" during service; (2) post-service evidence of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. The "noted" in-service element requires only that the condition was noted at the time the veteran was in service but such noting need not be reflected in any written documentation contemporaneous to service. Id. Additionally, the in-service and nexus elements can be presumed for certain chronic diseases, including hypertension and sensorineural hearing loss, if the disease manifested to a degree of 10 percent or more within one year of separation from a period of 90 days or more of such service. 38 U.S.C.A. §§§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) 2012). II.A. Service Connection - Bilateral Hearing Loss The Veteran contends that he has hearing loss due to his service as a door gunner in Vietnam from 1966 to 1967. Here, the Board must deny the appeal because the preponderance of evidence is against a finding that he has had a hearing loss disability, as defined by VA regulation, of either ear during any time contemporaneous to when he filed his claim in July 2005 to the present. A hearing loss disability is defined with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2012). 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hz is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. In a document dated in February 2006, the Veteran reported that he has had hearing loss since service. He reported that he underwent surgery in 1988 to replace an eardrum and has been losing his hearing since. The Veteran also reported that the physician who performed this surgery closed his offices thirteen years prior to his 2006 letter, inferring that those records were not available. In a February 2006 letter, Dr. "L.R." reported that he treated the Veteran during the 1970s and 1980s for left ear problems, including ear drum perforation. Dr. L.R. reported that the Veteran has several symptoms, including hearing loss, characterized by his pathology and had undergone a tympanoplasty by Dr. "S.B." in 1988, but had not improved. These letters, as well as the Veteran's statements, are not evidence that he has ever had a hearing loss disability as defined by VA regulation because the letters and the Veteran's statements do not include audiometric or word recognition test results. Associated with the claims file is a VA clinical audiology assessment consult report from March 2006 documenting the Veteran's report of left ear pain. Audiometeric testing revealed no threshold higher than 25 dB for any of the puretone frequencies applicable to the definition of a hearing loss disability. Word recognition scores were 96 percent for both ears. Diagnosis was normal hearing with mild to moderately severe sensorineural hearing loss above 6000 Hz. This is evidence against his claim because the audiometric and speech recognition test results show that he did not have a hearing loss disability of either ear as defined by regulation. Treatment records from Dr. L.R. are associated with the claims file but do not include audiometric or speech recognition test results. Diagnoses included hearing loss. There is also a medical report from Dr. "S.B." indicating that as of the last examination in February 2006 the Veteran had no hearing loss manifested by loss of ability to hear normal conversation or instructions. Other February 2006, treatment notes from Dr. S.B. include that the Veteran was positive for hearing loss. None of this evidence tends to show that the Veteran has ever had a hearing loss disability as defined by regulation because none of the evidence includes audiometric or word recognition test results. In February 2012, VA provided an audiology examination. Puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hz were 25, 25, 15, 15, and 30 dB, respectively, for the right ear, and 25, 20, 20, 25, and 15 dB, respectively, for the left ear. Speech recognition was 100 percent for each ear. This is evidence against his claim because the evidence shows that he does not have a hearing loss disability of either ear, as defined by VA regulation. There is no evidence of record showing that the Veteran has had a right or left ear hearing loss for VA compensation purposes as defined by 38 C.F.R. § 3.85 at any time since he filed his claim of entitlement to service connection in July 2005 or at any time contemporaneous to when he filed his claim. In the absence of a current disability, there can be no valid claim for service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed.Cir.2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present when the claim is adjudicated.); Romanowsky v. Shinseki, ---Vet. App. ----, No. 11-3272, 2013 WL 3455655 (July 10, 2013) (holding "that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency"). To the extent that evidence from Drs. R.L. and S.B. include diagnoses of hearing loss, the Board has considered the reports but finds that those documents do not show that the Veteran has had a hearing loss disability as defined by 38 C.F.R. § 3.385. For these reasons the Board concludes that the preponderance of evidence is against a finding that the Veteran has or has had a hearing loss disability for VA disability compensation purposes at any time relevant to his claim and appeal. Hence, the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II.B. Service Connection - Hypertension The Veteran contends that he has hypertension due to exposure to Agent Orange during his active service in Vietnam, he has submitted a statement reporting that he had hypertension on or about the day he was separated from active service in August 1967, and he contends that his hypertension was aggravated by his period of active service from February 2003 to August 2003. Service connection for hypertension was previously denied in now final February 2005 rating decision and the RO implicitly reopened the claim and denied it on the merits in the September 2008 rating decision on appeal. Before addressing the merits of the claim of entitlement to service connection, the Board must first independently determine whether the criteria for reopening the claim have been met. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). II.B.1. Service Connection - Hypertension - Reopening the Claim VA first received a claim of entitlement to service connection for hypertension from the Veteran in October 2004. The RO denied that claim in a February 2005 rating decision and provided the Veteran with notice of that denial and of his procedural and appellate rights on March 9, 2005. The basis for that denial was that the Veteran's hypertension preexisted his entrance onto active duty in February 2003 and his hypertension did not worsen during the period of active duty from February 2002 to August 2002. The RO did not address whether the Veteran had hypertension during his first period of active service. A review or determination on a claim by the RO, the claimant may appeal to the Board. 38 U.S.C.A. § 7104(a) (West 2002). Appeals to the Board are initiated by the filing of a notice of disagreement with the RO. 38 U.S.C.A. § 7105(a) (West 2002). Except in the case of simultaneously contested claim, which this was not, the notice of disagreement shall be filed within one year of the mailing of notice of the initial review or determination. 38 U.S.C.A. § 7105(b)(1) (West 2002). If no notice of disagreement is filed within that year, the RO's determination becomes final and the claim will not thereafter be reopened or allowed, except as otherwise may be provided by regulations not inconsistent with Title 38. 38 U.S.C.A. § 7105(c) (West 2002). If new and material evidence is submitted with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. The U.S. Court of Appeals for Veterans Claims (Veterans Court) has interpreted 38 C.F.R. § 3.156(b) , as preventing a decision from becoming final if new and material evidence is received within one year of notice of the decision and is not addressed. King v. Shinseki, 23 Vet. App. 464, 466 (2010); Young v. Shinseki, 22 Vet. App. 461, 469 (2009). That subsection provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). No evidence received within the appeal period of that February 2005 decision tended to show that his hypertension had worsened during his second period of active service, had onset during his first period of active service, manifested within one year of separation from his first period of active service, was caused by his first period of active service, or worsened during his second period of active service. No notice of disagreement with the February 2005 decision to deny service connection for hypertension was received by the RO within one year of the mailing of that decision and of the Veteran's procedural and appellate rights. The February 2005 decision thus became final. On March 31, 2006, the RO again received a claim of entitlement to service connection for hypertension. In the June 2006 rating decision on appeal, the RO determined that new and material evidence had not been submitted to reopen the claim and disallowed the claim on that basis. The Veteran filed a timely notice of disagreement with that decision, the RO mailed him a statement of the case in July 2006, and he perfected his appeal in August 2006. During the course of his appeal he asserted that his hypertension was caused by exposure to Agent Orange while serving in Vietnam. In a September 2008 rating decision, the RO implicitly reopened the claim of entitlement to service connection for hypertension and denied the claim on the merits. At the time of the February 2005 decision, unestablished facts that, if established could substantiate his claim, included whether hypertension had onset during his first period of active service, which ended in August 1967, manifested to a degree of 10 percent or greater during an applicable presumptive period; i.e., prior to August 1968, was caused by his first period of active service, or worsened during his second period of active service from February 2003 to August.2003. Evidence added to the claims file in July 2008 is new and material. In a letter received that month, "J.M.O." reported that he met the Veteran in Vietnam in August 1966, they were reassigned, and he again met the Veteran in the United States between August 1, 1967 and August 3, 1967. J.M.O. stated that the Veteran "commented to me that he had high blood pressure and I accompanied him to receive treatment on August 2, 1967." In Layno v. Brown, 6 Vet. App. 465, 468 (1994), the Veterans Court listed as fact that a witness testified that shortly after Mr. Layno's return from service, he complained about asthma. The Veterans Court also stated as follows: "The affiants also stated that they had personal knowledge of the appellant's treatment by Dr. Corpuz because they had been invited to accompany the appellant when he went for treatment. The affiants did not state whether they had actually accompanied the appellant to his appointments with Dr. Corpuz." Id. In addressing the competency of the witnesses' statements regarding the Mr. Layno's treatment, the Veterans Court stated as follows: Regarding the appellant's treatment, Messrs. Laeno and Madalipay testified that they knew of the treatment because they had been invited to accompany the appellant to the Corpuz clinic. The affiants did not testify that they did in fact accompany the appellant and observe the treatment. Plainly, the affiants' testimony that the appellant had bronchial asthma must be excluded as incompetent. Id. Furthermore, their testimony that the appellant had in fact been treated for bronchial asthma must also be excluded because it lacks personal knowledge. Since they did not personally observe the treatment, they have no personal knowledge that the appellant was in fact treated. From this statement it is clear that what was missing from the witnesses' statements was that they had accompanied Mr. Layno to treatment. In the instant case, J.M.O. states that he accompanied the Veteran for treatment. For the purpose of determining whether the claim is to be reopened, the Board must take J.M.O.'s statement as credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). On its face, the statement is one placing treatment for high blood pressure during service. Although there is a question as to whether a report of "high blood pressure" is equivalent to a report of hypertension, the Board concludes that the evidence is related to the unestablished fact of whether the Veteran had hypertension during service. Therefore, the Board reopens the claim. Next, the Board addresses the merits of the claim it has reopened. II.B.2 Service Connection - Hypertension - Merits of the Claim The Board finds that J.M.O.'s statement just discussed is outweighed by more probative evidence of record as to whether the Veteran had hypertension during his first period of active service. J.M.O. contends that he accompanied the Veteran for treatment of high blood pressure on August 2, 1967. Service treatment records document that the Veteran completed a report of medical history on August 2, 1967, one day prior to separation from active service. In that report of medical history he checked a selection box indicating that he did not then have high blood pressure and had never had high blood pressure. In a section for a physician's summary and elaboration of all pertinent data, a physician or examiner indicated that the Veteran had no complaints. Also of record is an earlier report of medical examination, including in September 1966, in which his blood pressure was recorded as no higher than 120 over 74 and there is no mention of high blood pressure or hypertension. If the Veteran sought treatment for high blood pressure on August 2, 1967, as reported by J.M.O., then the Veteran would have known that he had high blood pressure on August 2, 1967 when he completed the report of medical history. As between a statement received 40 years after the alleged fact, and the Veteran's own endorsement on or about the same date as reported by J.M.O., the Board finds the earlier endorsement by the Veteran more probative. This is because the earlier endorsement is not subject to the effects of memory over such a long period of time and very clearly indicates that the Veteran did believe that he had high blood pressure. Service treatment records do not otherwise include evidence of hypertension. The Board finds that the service treatment records are the most probative evidence of record as to whether hypertension manifested during the first period of active service and therefore concludes that hypertension did not manifest during the first period of active service. Next, the Board finds that hypertension did not manifest within one year of separation from the Veteran's first period of active service and therefore service connection cannot be presumed under the provisions for chronic diseases. In a July 2008 statement, the Veteran's spouse reported that she met the Veteran "in 1970 and since then he was suffering from hypertension. He was treated by Dr. ["L.R.," Dr. "R.," and Dr. "M."] with the pass of time the hypertension or high blood pressure continued to worsen. In 1987-88 he began to be treated by the National Guard . . ." In another July 2008 statement, Dr. L.R. stated that the Veteran "has been treated by this server since 1969. At that time, he showed problems of hypertension characterized by high blood pressure and headaches." Neither of these statements is evidence that hypertension manifested within one year of his separation from active service on August 3, 1967. These statements therefore do not tend to show that his hypertension manifested within the presumptive period for chronic diseases. Additionally, documented in a November 2004 VA examination report is that the Veteran reported that he had been diagnosed with hypertension six years prior to that November 2004 examination. In a report of a June 2006 Social Security Evaluation Interview, Dr. "N.R.V." documented the Veteran's report of a 1988 high blood pressure diagnosis. Associated with the Veteran's National Guard medical treatment records are several documents supporting a finding that his hypertension manifested many years after service. For example, a report of medical examination from November 1986 documents normal clinical evaluations of all systems and anatomy and lists his blood pressure as 120 over 80. The earliest notation of hypertension is an October 1987 National Guard treatment record that includes a diagnosis of mild hypertension. The Board finds that the preponderance of evidence is against an award of service connection for hypertension based on application of a presumptive provision for chronic diseases. The Board also concludes that service connection is not warranted on a basis that his active service from 1966 to 1967 caused his hypertension, to include due to exposure to Agent Orange. For veterans who served within or in the Republic of Vietnam between January 1962 and May 1975, as did the Veteran, service connection is presumed for certain enumerated diseases that manifested within a specified period based on exposure to an herbicide agent, such as Agent Orange. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a), 3.309(e) (2012). Hypertension is not one of the enumerated diseases subject to the presumption. 38 U.S.C.A. § 1116; 3.309(e) (2012). Therefore, service connection for hypertension cannot be presumed based on exposure to Agent Orange. That service connection for a disease cannot be presumed is not a bar to establishing service connection by a showing that the evidence favorable to the claim either preponderates over or is in equipoise with the evidence unfavorable to the claim. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). Here, there is no competent evidence of record showing that exposure to Agent Orange caused the Veteran's hypertension. The Veteran, his spouse, and J.M.O. have expressly or implicitly opined that his hypertension was caused by exposure to Agent Orange. There is no evidence that they have expertise in medical matters so they are considered non-experts or laypersons in this regard. Factors to be considered in determining if lay evidence as to medical questions is competent evidence include the complexity of the question and whether answering the question can be accomplished by reliance on one's senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating in footnote 4 that "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."); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (stating "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge"). This applies to nexus opinions as well as diagnoses. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). It is well known that whether a given substance caused a disease is a complex question addressed by scientists and physicians and involving extensive research. It is therefore a complex question. Whether the Veteran's hypertension was caused by exposure to Agent Orange is not a determination that can be made by observation with one's senses and is not within the realm of knowledge of a layperson. For these reasons, the Board finds that the lay nexus opinions are not competent evidence and therefore are not probative of whether Agent Orange caused his hypertension. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (stating "[c]ompetency, however, must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact"). The Veteran also contends that his period of active service from February 2003 to August 2003 aggravated his hypertension. For example, in a March 2006 document he reported that since being activated in 2003 he has had uncontrolled blood pressure. The preponderance of evidence is against a finding that his hypertension was aggravated during his that period of active service. First, the Board finds that the Veteran's hypertension was noted at examination and acceptance onto his 2003 period of active duty. In a medical evaluation notes section of an October 2002 annual medical certification, it is documented that the Veteran had controlled high blood pressure treated with medication. Given that this is in a medical evaluation section, and that the recommendation was for deployment, the Board finds this to be a noting of hypertension on a medical examination report when accepted onto active service and therefore the presumption of soundness does not apply to his hypertension. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). For preexisting injury or diseases noted on examination into active service, the claimant has the burden of showing, to an equipoise evidentiary standard, that the condition increased in disability during his active service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (explaining "[u]nder section 1153, however, the appellant bears the burden of showing that his preexisting condition worsened in service."). As to what is meant by an increase in disability (a worsening of a preexisting disease or injury), the Veterans Court has held as follows: "Given the plain meaning of 38 U.S.C. § 353, and the purposes of the veterans disability laws, we hold that temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (stating "[a]ccordingly, § 1153 requires an increase in the severity of the preexisting condition, as distinguished from the mere recurrence of manifestations of the pre-service condition. Evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability"). Section 353 was essentially unchanged in pertinent part from the later statute designated as section 1153. The Veteran's DD 214 for his period of service from February 2003 to August 2003 documents that he was awarded the Army Commendation Medal with Combat Distinguishing Device "V" and that his DD Form 214 for the October 1965 to August 1967 period of service does not list that award. However the award is documented in General Orders Number 6221, dated in October 1967. The award was thus for service during his the October 1965 to August 1967 period of active service. The preponderance of evidence shows that there are no other awards indicative of, or any other evidence of, engagement in combat with the enemy during his February 2003 to August 2003 period of active service. Hence, the relaxed evidentiary standards of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.306(b)(2) do not apply to that period of active service. Service treatment records document that as of October 2002 the Veteran's hypertension was controlled with medication. In November 2002 his blood pressure was recorded as 138 over 84. An individual sick slip from June 2003 documents a blood pressure of "180-110" and a recommendation of no physical training for 2 to 5 days and follow-up in 2 weeks. An entry from July 2003 documents "High Blood Pressure 160-98." There is also a chart documenting his blood pressure on several days in June 2003, with readings ranging from 140 over 90 to 160 over 98. A report of a November 2004 VA examination documents that the Veteran reported that he ran out of medication for hypertension during his deployment in April 2003 and did not take the medication for two months. He also informed the examiner that in July 2003 his blood pressure was found to be uncontrolled. Blood pressures measured during the November 2004 examination and/or in a November 2005 VA Agent Orange Registry examination report, range as high as 179 over 102. Also of record are numerous VA treatment records documenting lower blood pressures, for example, 110 over 70 in June 2004 and 140 over 90 in June 2006. The Board obtained an expert opinion from a Veterans Health Administration (VHA) physician in May 2013 on the issue of whether the Veteran's period of active service in 2003 aggravated his hypertension. The physician discussed the history of the Veteran's hypertension in detail. The physician provided an opinion that "although it is somewhat speculative on my part, given the lack of studies, it is my opinion that a seven-month period of hypertension would not have worsened his hypertension as defined by the Board." The Board's description, as acknowledged by the physician, included that "worsened" does not mean a temporary increase or flare-up of symptoms due to not taking prescribed medication or otherwise, but rather means a permanent increase in the hypertension itself. The physician also explained that it appears that the Veteran's blood pressure readings during routine treatment visits after August 2005 were more or less the same as those prior to his second period of active duty. The physician stated that he could not explain why the measurements in other evidence, such as the Agent Orange Registry examination in 2005, were higher. He explained that this may be due to stress during the examinations ("white coat" syndrome) or simply failure to take his medications prior to the examinations. He also explained that while there may be purely theoretical reasons for a permanent increase in the severity of hypertension due to a period of uncontrolled hypertension, such as the period of uncontrolled hypertension causing kidney remodeling, there is no such evidence that this occurs in humans during a seven month period. The Board finds this opinion to be the most probative evidence of record as to whether the Veteran's hypertension permanently worsened during his period of active service from February 2003 to August 2003. The Board has considered the physician's statement that his opinion was "somewhat speculative" but the examination report as a whole, including his references to research, is not one of reliance on mere speculation but rather one grounded in medical knowledge and expressed in terms other than mere speculation. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (explaining that in determining whether an expert opinion is adequate, the report must be read as a whole). The Veteran and his spouse have offered their opinions in this regard. For example, in the July 2008 statement, his spouse reported that "[t]he situation worsened when he was stationed in Kuwait in 2003 and ran out of pills and was without medication for some time." Whether his period of active service in 2003 permanently worsened his hypertension is not a question that can be answered by observation of one's senses. As the physician explained in the May 2013 report, how and from what cause hypertension is permanently worsened are subjects of research studies. The Board concludes that this is a complex question. Therefore, the Board finds that the opinions of the Veteran and his spouse as to permanent worsening of his hypertension during service are not competent evidence. For these reasons, the Board concludes that the preponderance of evidence is against a finding that the Veteran's hypertension permanently worsened during the February 2003 to August 2003 period of active service. In reaching these conclusions, there has been no reasonable doubt to be resolved as to any question, to include whether a presumptive provision applies, whether hypertension had onset during his first period of active service, whether hypertension was aggravated by a period of active service, whether hypertension was noted at acceptance into the second period of active service, or whether his hypertension was caused by any event or condition of his active service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) In summary, the preponderance of evidence is against awarding service connection, or service aggravation, for hypertension. Hence, the appeal must be denied. ORDER The claim of entitlement to service connection for hypertension is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for arterial hypertension is denied. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs