Citation Nr: 1323900	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO. 00-22 858A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss. 

2. Entitlement to service connection for tinnitus. 

3. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder, service-connected diabetes mellitus type II (DMII) or service-connected ischemic heart disease. 

4. Entitlement to service connection for bipolar disorder with depression. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans



WITNESSES AT HEARING ON APPEAL

Veteran and spouse


ATTORNEY FOR THE BOARD

Saira Spicknall


INTRODUCTION

The Veteran served on active duty from November 1963 to August 1967, including service in the Republic of Vietnam from January 1966 to January 1967.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a ratings decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). 

The Board remanded the appeal in October 2004 to afford the Veteran a hearing. The Veteran testified at a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing) in February 2005. A transcript of that hearing has been associated with the claims file. The Veterans Law Judge who conducted this hearing has since retired and the Veteran was informed of this fact and provided the opportunity for a new hearing in a January 2013 letter. No response to the letter was received. 

In an October 2005 decision, the Board denied the Veteran's claims for service connection for a ganglion cyst of the right wrist, hypertension, bipolar disorder with depression, posttraumatic stress disorder (PTSD), and joint pain, and remanded his claims for service connection for hearing loss, tinnitus, a left elbow spur, and a low back disability. 

The Veteran appealed the denied claims to the United States Court of Appeals for Veterans Claims (Court). In a March 2007 Joint Motion to the Court, the parties (the Veteran and the VA Secretary) requested that the Board decision be vacated as to the issues of service connection for hypertension and a psychiatric disorder, and that these two issues be remanded. The parties noted that the Veteran had withdrawn his appeals as to the issues of service connection for a left wrist disability, joint pain, and PTSD. In a March 2007 Court Order, the Joint Motion was granted, the Board's October 2005 decision was vacated with respect to the issues of service connection for a psychiatric disorder other than PTSD and service connection for hypertension, and these issues were remanded. The case was subsequently returned to the Board. In September 2007, the Board remanded these two issues to the RO for additional development. 

In a July 2009 decision, the Board denied the claims for service connection for bilateral hearing loss, tinnitus, hypertension, bipolar disorder with depression, a low back disability, and a left elbow disability. The Veteran again appealed to the Court, and in a December 2010 Joint Motion for Partial Remand, the parties requested that the Board decision be vacated as to the issues of service connection for bilateral hearing loss, tinnitus, hypertension, bipolar disorder with depression, and a low back disability. The parties stated that the Veteran did not wish to appeal the Board's denial of service connection for a left elbow disability. In a January 2011 Order, the Court vacated the Board's July 2009 decision as to the issues of service connection for bilateral hearing loss, tinnitus, hypertension, bipolar disorder with depression, and a low back disability, and remanded these issues. The Court dismissed the appeal as to the issue of service connection for a left elbow disability, and hence that issue is not before the Board. 

In July 2011, the Board denied the claim for service connection for a low back disability. The Board also remanded the remaining claims for service connection for bilateral hearing loss, tinnitus, hypertension and bipolar disorder with depression for further development, per the December 2010 Joint Motion. 

During the pendency of this appeal, the RO granted service connection for diabetes mellitus and ischemic heart disease. These issues are not before the Board. 

A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. A supplemental statement of the case (SSOC) was issued in November 2012, which addressed this additional evidence.


FINDINGS OF FACT

1. Affording the Veteran the benefit of the doubt, his bilateral hearing loss disability was incurred during his active service. 

2. Affording the Veteran the benefit of the doubt, his tinnitus was incurred during his active service. 

3. The preponderance of the probative evidence of record indicates the Veteran's hypertension did not originate during his active military service or for many years after, is not related to his active service, and is not related to or aggravated by an acquired psychiatric disorder, service-connected DMII, or service-connected ischemic heart disease. 

4.  The preponderance of the probative evidence of record indicates that the Veteran's psychiatric disorder did not originate during his active military service. 


CONCLUSIONS OF LAW

1. The criteria for the establishment of service connection for bilateral hearing loss have been approximated. 38 U.S.C.A. §§ 1110, 1131, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).

2. The criteria for the establishment of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

3. The criteria for the establishment of service connection for hypertension, to include as secondary to an acquired psychiatric disorder, DMII or ischemic heart disease, have not been approximated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a), (b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

4. The criteria for the establishment of service connection for bipolar disorder with depression have not been approximated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Veterans Claims Assistance Act (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). 

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012).

The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was provided notice consistent with the requirements of the VCAA in November 2001 and October 2007. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received information in October 2007 about the establishment of disability ratings and effective dates if a claim of service connection was successful. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra.

The September 2011 VA examination reports and the November 2007 and November 2012 VA opinions regarding hypertension reflect that the examiners reviewed the Veteran's past medical history, documented his current medical condition, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the medical examinations and opinion are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 

The September 2011 VA hypertension found that it would require resort to mere speculation to opine whether or not the Veteran's current hypertension was caused or aggravated to any degree by his service-connected ischemic heart disease. 

In Jones v. Shinseki, 23 Vet.App. 382 (2010) the Court held that an "examination is not inadequate merely because the examiner states he or she cannot reach a conclusion without resort to speculation." Jones, 23 Vet. App. at 391. The Court also found that "VA is not bound to proceed through multiple iterations of medical opinions until it declares that no further examinations would assist the claimant[,]" which, in the Court's view, was "inherent in a finding that the duty to assist has been fulfilled." Id.

In Jones, the Court notes that the duty to assist requires VA to obtain all relevant information that may reasonably be obtained before the Board may rely on a VA medical examiner's opinion to deny a claim and enumerates the steps under which the duty to assist may apply. Id. at 388. The Court first finds that the duty to assist applies when "an examiner specifically identifies additional information that would facilitate a more conclusive opinion."  In this case, the VA examiner did not specify that any additional information would be necessary to facilitate a more conclusive opinion with respect to the Veteran's hypertension in the September 2011 VA examination report. 

The Court also held that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion."  Id. at 389. The September 2011 VA examiner based his conclusions upon a review of the claims file, the Veteran's reported history, an examination of the Veteran as well as current medical literature. His conclusions were therefore based upon due diligence and relevant medical information that may have had a bearing on the case in reviewing the claims file. 

The Court in Jones also held that while an opinion that diagnosis or etiology was not possible without resorting to speculation was just as much a medical conclusion as a firm diagnosis or a conclusive opinion, a bald statement that it would be speculative to render an opinion as to etiology or diagnosis was ambiguous and thus, it must be clear, that the examiner has considered "all procurable and assembled data," by obtaining all relevant tests and records that might reasonably illuminate the medical analysis. Id. at 390. Thus, only when this issue is in doubt does the Board's duty to remand for further development arise. 

Here, the examiner considered all procurable and assembled data, including, the available service records, documentation of treatment for the Veteran's hypertension, the Veteran's reported history, the available post-service records and a physical examination of the Veteran in rendering the September 2011 VA examination opinion. 

Moreover, the examiner made it clear that his opinion reflected the limitations of knowledge in the medical community at large, by noting that there was no current medical literature that would support the causality or aggravation of hypertension by either his service-connected DMII, or ischemic heart disease. See id. Finally, the examiner clearly identified precisely what facts could not be determined; in this case, he specified that it was that there was no knowledge in medical literature that would support the causality or aggravation of hypertension by DMII, or ischemic heart disease. See id. In addition, the examiner did provide an alternative likely etiology of hypertension as being due to his diastolic dysfunction which was documented in current medical literature.

Accordingly, in this case it would be inappropriate for VA to demand a conclusive opinion from a physician whose evaluation of the "procurable and assembled" information prevents the rendering of such an opinion and it is otherwise apparent, based on the Board's review of the evidence, that there is nothing further to be obtained from that particular examiner. See id. at 391. While the duty to assist the veteran includes providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. See id. Therefore, based upon the foregoing, the September 2011 VA examination and opinion were adequate. 

This case was remanded by the Board in July 2011 to obtain any outstanding treatment records and to provide the Veteran with an adequate VA examination for hearing loss, tinnitus, hypertension and bipolar disorder. As the VA examiner performed all the tests necessary to evaluate the Veteran's current disabilities  and complied with the Board's remand instructions, the development requested by its July 2011 remand has now been satisfactorily completed and substantially complied with respect to these issues. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with). 

In February 2005 the Veteran was afforded a Travel Board hearing before a Veterans Law Judge. The transcript reflects that the Veterans Law Judge conducted the hearing in accordance with the statutory duties to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position," pursuant to 38 C.F.R. § 3.103(c)(2), as explained by the Court in Bryant v. Shinseki, 23 Vet. App. 488 (2010). The transcript of the hearing reflects that the Veterans Law Judge allowed the Veteran's representative to identify and present the issues on appeal, including the issues listed on the title page above. The Veterans Law Judge also asked the Veteran about his noise exposure in service, allowed the representative to present all arguments with respect to the issues currently still on appeal and discussed whether a physician had provided an opinion with respect to the bipolar disorder. The duties in 38 C.F.R. § 3.103(c)(2) were met and the Veteran was not prejudiced by the hearing that was provided. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). The February 2005 hearing was legally sufficient. 

To the extent that the February 2005 hearing may be legally insufficient in any way, given the fully favorable nature of the Board's decision with respect to the claims for service connection for hearing loss and tinnitus there is no prejudice to the Veteran arising from these decisions. 

All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, service personnel records, private medical records, VA outpatient treatment reports, adequate VA examinations and opinions, a lay statement from the Veteran's friend, and statements and testimony from the Veteran, his spouse and his representative. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). 


The Merits of the Claims

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss, tinnitus, hypertension and psychoses, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R §§ 3.307, 3.309. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. § 1113.

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365.

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. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when 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);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

 (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

With regard to VA examinations, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999).

1. Service Connection for Hearing Loss and Tinnitus

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the 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 (2012). However, the Court of Appeals for Veterans Claims (Court) cited a 1988 medical treatise that stated that the threshold for normal hearing is from 0 to 20 dB, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A recent edition of this treatise retains the same definition. See Current Medical Diagnosis and Treatment, 162, Stephen J. McPhee et.al. eds., 47th Ed. (2008).

The Veteran contends that his bilateral hearing loss and tinnitus were caused by exposure to high noise levels in service and that these symptoms have continued since his separation from active service. 

The Veteran's service records demonstrate that he served in the Republic of Vietnam during the Vietnam War from January 1966 to January 1967 with a primary duty title of weapons mechanic. These records demonstrate duties and circumstances consistent with noise exposure from artillery fire. Therefore, the Board concludes that the Veteran was exposed to high levels of noise in service.

Service treatment records reflect no findings related to hearing loss during the Veteran's active service. The October 1963 entrance examination demonstrated normal findings of the ears and drums upon clinical evaluation and the Veteran reported no problems with the ears in the October 1963 Report of Medical History. Audiometric testing in the entrance examination revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
-10
-10
-5
-5
-5
LEFT
-5
-5
5
5
5

Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO/ANSI) units. Thus, the results of the audiometric testing at entrance, converted from ASA to ISO/ANSI units, are as follows:








HERTZ









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

March 1965 audiometric testing revealed that the hearing threshold levels in decibels, converted from ASA to ISO/ANSI units, were as follows:




HERTZ









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

The July 1967 separation examination demonstrated normal findings of the ears and drums upon clinical evaluation and the Veteran reported no problems with the ears or hearing in the July 1967 Report of Medical History. Audiometric testing in the separation examination revealed that the hearing threshold levels in decibels, converted from ASA to ISO/ANSI units, were as follows:




HERTZ









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

VA outpatient treatment reports from November 1995 to October 2012 reflect that tinnitus was initially noted as one of the Veteran's medical problems in February 1996. A January 1997 VA outpatient treatment report reflects that the Veteran was treated for and diagnosed with external otitis which was noted to have improved and rule out recurrent otitis media. In an August 1997 VA audiology evaluation, the Veteran complained of tinnitus and initially complained of decreased hearing, both from noise exposure during his service in the Air Force. Audiometric testing in August 1997 revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
0
5
20
30
45
LEFT
5
5
15
35
40

The VA audiologist found that external ear canals were partially occluded and that the Veteran was also treated for fungal otitis externa. Speech recognition scores were 92 percent in the right ear and 100 percent in the left ear, although it is unclear whether Maryland CNC speech recognition testing was used. The Veteran was assessed with hearing within normal limits through 2000 Hertz with mild to moderate sensorineural hearing loss at the higher frequencies in both ears. 

During a February 1998 VA Audiology examination, the Veteran complained of having decreased hearing and a ringing in the ears. He stated that hearing loss created problems on a daily basis in nearly every situation. He also reported a history of military noise exposure from jets, power equipment and being a gun crewman. The Veteran stated the ringing in his ears began his first quiet night after returning from Vietnam, which was when he first noticed the ringing. Audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
15
10
20
40
35
LEFT
10
10
20
45
45

Average puretone threshold values were 26 in the right ear and 30 in the left ear. Maryland CNC speech recognition scores were 96 percent in the right ear and 100 percent in the left ear. Tympanometry and acoustic reflex testing was normal. The Veteran was diagnosed with moderate high frequency sensorineural hearing loss in each ear. 

At an August 1998 VA ear disease examination, the Veteran had noted having slowly progressive hearing loss, worse in the right ear than in the left ear. He also reported progressive bilateral tinnitus which was described as high-pitched, constant and non-pulsatile. The Veteran reportedly had left sided otalgia and otitis externa three weeks earlier, which was treated with antibiotics and resolved. He noted a history of otitis externa with a fungal infection. He reported he had never worn hearing aids. The examiner noted the Veteran had considerable noise exposure while in the Air Force, reportedly having worked on a bomb crew as well as a radar while he was on the flight line. The examiner found that an audiogram showed symmetrical high frequency sensorineural hearing loss, which was in the moderate range. He also noted the speech reception thresholds were 12 bilaterally with 100 percent discrimination in the left and 96 percent on the right, and tympanograms were within normal limits. The examiner assessed the Veteran with high frequency sensorineural hearing loss, which was symmetrical and was probably due to noise exposure, coupled with presbycusis. 

In a December 1999 lay statement, the Veteran's friend, R.G., reported that the Veteran spent time with R.G. and his family upon the Veteran's return from Vietnam. R.G. stated that he remembered that the Veteran had to raise the volume on the television in order to go to sleep due to the ringing in his ears. 

In a November 2002 VA outpatient treatment report, the Veteran complained of gradually decreasing hearing in both ears with associated communication problems. He reported that hearing loss and tinnitus had been present since his service in the Air Force in Vietnam. He reported he had a copy of his military record showing hearing loss at discharge from service. The VA audiologist noted that an audiology evaluation indicated the right ear was with within normal limits from 250 Hertz to 2000 Hertz and mild/moderate sloping to severe sensorineural hearing loss from 3000 to 8000 Hertz. In the left ear, the examiner noted hearing was within normal limits from 250 Hertz to 2000 Hertz and moderate sloping to severe sensorineural hearing loss from 3000 to 8000 Hertz. Word reception thresholds were noted as within normal limits in both ears and tympanogram testing revealed type A tympanogram on the right and type As tympanogram on the left. Hearing aids were recommended to the Veteran at that time. The VA audiologist opined that, based on the Veteran's description of his military noise exposure, it was his opinion that it was as likely as not that the hearing loss and tinnitus were caused by the Veteran's military noise exposure. At that time, it was noted that the Veteran was to provide a copy of his military hearing test for review. 

At a December 2005 VA audiology examination, the Veteran reported having difficulty understanding speech, especially in noise, since 1966. He also reported having decreased hearing for a few seconds, one to two times a month, for a few years. The Veteran reported having a history of military noise exposure from 1963 to 1967, at which time he was exposed to aircrafts with inconsistent use of hearing protection. He reported that hearing protection was not always adequate. As a civilian, the Veteran reported having worked in a shoe repair business. He denied any recreational noise exposure. With respect to his tinnitus, the Veteran reported that he first became aware of tinnitus when he got home from Vietnam in 1966 or 1967. He reported that he used the television to help mask his tinnitus at night. He also stated that tinnitus was annoying in quiet environments. The Veteran reported having an "internal thumping" in both ears for the past five years, which occurred two to four times a month and lasted for one to ten minutes. Tinnitus was reportedly bilateral and constant. The examiner concluded that he could not provide an opinion regarding the etiology of tinnitus without resorting to mere speculation and that it was less likely than not that tinnitus was due to the same etiology as the hearing loss. No rationale was provided for either opinion. Audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
10
10
30
55
50
LEFT
10
10
15
55
45

Average puretone threshold values were 36.25 in the right ear and 31.25 in the left ear. Maryland CNC speech recognition scores were 96 percent in the right ear and 92 percent in the left ear. Tympanometry was within normal limits in the right ear and indicated slightly reduced compliance in the left ear. Speech recognition tests indicated normal word recognition ability in the right ear and good word recognition ability in the left ear. Speech recognition tests were noted as being consistent with puretone thresholds and the overall reliability was good. The Veteran was diagnosed with mild to moderate, high and mid frequency, sensorineural hearing loss on the right and moderately severe to moderate, high frequency sensorineural hearing loss  on the left. The examiner opined that the Veteran's hearing loss was less likely than not related to his active service. He found that he could not assess the relationship between the tinnitus and the Veteran's military service without resorting to mere speculation. The examiner noted that the reported date of onset of tinnitus coincided with his dates of military service, but his tinnitus preceded his hearing loss, according to audiometric records contained in the claims file. He noted that he would expect the noise-induced tinnitus to be accompanied by noise induced hearing loss. 

During a September 2011 VA audiology examination, Audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
15
20
50
55
55
LEFT
15
15
30
55
50

Average puretone threshold values were 45 in the right ear and 38 in the left ear. Maryland CNC speech recognition scores were 92 percent in the right ear and 90 percent in the left ear. The Veteran was diagnosed with sensorineural hearing loss in the frequency range of 500 to 6000 Hertz or higher in both ears. The examiner opined that it was not at least as likely as not that hearing loss and tinnitus were caused by or a result of an event in military service. The examiner also opined that tinnitus was at least as likely as not a symptom associated with hearing loss. He noted the Veteran's report of having bilateral hearing loss since 1966 and exposure to "extreme" noise while serving in the military from aircraft with inconsistent use of hearing protection. The examiner also noted the Veteran reported that hearing protection was not always adequate. The Veteran denied recreational noise exposure. The examiner explained in his rationale that a September 2005 Institute of Medicine Report on noise exposure in the military concluded that, based on current knowledge, noise induced hearing loss occurred immediately, specifying that there was no scientific support for delayed onset of noise induced hearing loss weeks, months or years after the exposure event. He also reported that, according to the Noise Manual, Fifth Edition, "only seldom [did] noise cause a permanent tinnitus without also causing hearing loss."  Therefore, the examiner concluded that, as the Veteran's hearing loss was within normal limits in both ears, with no standard threshold shift evident at separation and the service treatment reports were silent for tinnitus, it was his clinical opinion that the Veteran's hearing loss and tinnitus were less likely than not caused by or a result of in-service noise exposure. 

The evidence as to both hearing loss and tinnitus is in approximate balance, both for and against the claim. Entitlement to service connection for hearing loss and tinnitus is warranted. Based upon the probative evidence set forth above, the Veteran's current hearing loss and tinnitus were incurred during his active service. 

As noted above, the Veteran's service information supports his reports of exposure to excessive noise during his active service.  His service records also reflect that, when converted from ASA to ISO/ANSI units, the speech reception thresholds increased from the Veteran's entrance examination to his separation examination in the right in most frequencies and on left at 500 and 1000 Hertz. 

The post-service medical evidence reflects the Veteran has current diagnoses of bilateral hearing loss and tinnitus. 

In addition, the Board finds that the Veteran's statements regarding his exposure to excessive noise during active service are credible as they are supported by his service records. See Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). The Veteran's statements and testimony regarding a continuity of decreased hearing and tinnitus since his active service are also found to be credible. Id. Due to the subjective nature of [tinnitus], the veteran, as a layperson is competent to testify as to his symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). 

In considering the February 1998, December 2005 and September 2011 VA audiology examinations and opinions, along with the February 1998 VA ear disease examination indicating sensorineural hearing loss was probably due to noise exposure coupled with presbyacusis and the November 2002 VA audiologist's positive opinion, which was based upon the Veteran's credible history of noise exposure, taken together with the Veteran's service information and his credible lay statements, puts the evidence in relative equipoise as to whether the Veteran's current bilateral hearing loss and tinnitus are related to the military noise exposure incurred during his active service. Accordingly, the Board will resolve doubt in favor of the Veteran and find that his bilateral hearing loss and tinnitus are related to his past military noise exposure. 

Thus, resolving all reasonable doubt in favor of the Veteran, service connection for bilateral hearing loss and tinnitus is warranted. 38 C.F.R. § 3.102 (2012). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

2. Service Connection for Hypertension

In statements during the pendency of this appeal, the Veteran has maintained that his current hypertension is secondary to an acquired psychiatric disorder, his service-connected DMII or his service-connected ischemic heart disease. 

Service treatment records reflect no findings or diagnoses of hypertension. In the October 1963 entrance examination, his blood pressure was recorded at 128/66 and a clinical evaluation revealed normal findings of the heart and vascular system. The Veteran reported no history of problems with high blood pressure or hypertension in the October 1963 Report of Medical History. In the July 1967 separation examination, the Veteran's blood pressure was recorded at 130/70 and a clinical evaluation revealed normal findings of the heart and vascular system. He reported no history of high or low blood pressure or problems with blood pressure or hypertension in the July 1967 Report of Medical History. 

VA outpatient treatment reports from November 1995 to October 2012 reflect that hypertension was initially noted as one of the Veteran's medical problems in February 1996. Subsequent VA medical records reflect he was thereafter treated for and diagnosed with hypertension. 

During a February 1998 VA examination, the Veteran reported he had a long history of hypertension since the early 1970s. He reported hypertension had always been difficult to control but that he had not had a cerebrovascular accident or overt heart failure. The Veteran also complained of having chest rightness. His current hypertension medication included doxazosin. A physical examination revealed blood pressure findings of 170/90 sitting, 150/80 supine and 160/90 standing. The Veteran was assessed with hypertension, which was poorly controlled. An exercise stress test and echocardiogram (ECG) were to be performed and an addendum noted that there was marked systolic hypertension with exercise and a high likelihood that coronary artery disease was present. 

In a February 1999 letter, the Veteran's private physician, Phillip W. Cushman, M.D., reported that he first consulted with the Veteran in June 1993, at which time his blood pressure was elevated. 

In a March 1999 lay statement, the Veteran's wife reported that she had met the Veteran when he had just returned from Vietnam. She reported that one night he felt very light headed and thought he was having a stroke because his blood pressure had been very high and was not controlled by medication.  She also stated that paramedics had confirmed his blood pressure was high. An approximate date or year of this incident was not reported. 

In a February 2005 Travel Board hearing, the Veteran testified that his blood pressure was a "little high" in service when they checked it, although he did not believe he was medicated for hypertension in service. He stated that his service representative suggested that hypertension was an offshoot of the Veteran's mental problems which would serve to raise his blood pressure. The Veteran testified that when he went for a VA examination, his blood pressure was found to be "within the parameters" and he did not understand the meaning of that term. He also reported his current blood pressure was checked a week earlier, with a reading of 150/118. 

In November 2007, a VA opinion was furnished with respect to the etiology of the Veteran's hypertension. The examiner reviewed the claims file and opined that the Veteran's hypertension was not caused by or the result of his active military duty and was not causally related to his military service. The examiner noted the Veteran's report of having been diagnosed with hypertension in the early 1970s. He then found that there was no objective evidence of hypertension during active duty or within one year following the Veteran's release from active duty. 

In noting findings from the service treatment reports and the March 2002 rating decision, the examiner explained that he agreed with the March 2002 rating decision, finding that there was no objective evidence of elevated blood pressure readings or hypertension during active military duty. He also noted the VA examination conducted in 1998 documented the Veteran's report of having a long history of carrying a diagnosis of hypertension since the early 1970s. The examiner also opined that the Veteran's hypertension was not caused by, a result of or aggravated by DMII. He explained that there was no objective evidence to support a claim that hypertension was caused by or aggravated by the service-connected DMII. The examiner also noted a May 2006 VA medical record discussing the recent diagnosis and treatment of DMII. 

At a September 2011 VA examination, the Veteran was diagnosed with hypertension. Treatment with medications included Atenolol, Lisnopril, and Hydrochlorothiazide. Current blood pressure readings included 141/101, 147/105 and 172/110. The examiner opined that, it would require resort to mere speculation to opine whether or not the Veteran's current hypertension was caused or aggravated to any degree by his service-connected ischemic heart disease or his current mental health conditions. He explained that the current medical literature did not support a cause and effect relationship between ischemic heart disease and the subsequent development or aggravation of hypertension. He also noted that, although diabetes had been known to contribute to the development of hypertension after several years, the Veteran's hypertension was diagnosed in 1999, many years prior to his diagnosis of diabetes in approximately 2008. 

The examiner found that there was no current objective evidence that the Veteran's current hypertension was caused by his service-connected DMII and it was not possible to objectively determine from the currently available objective evidence the degree of contribution, if any from DMII to hypertension, however, there was no current objective evidence of any contribution. He then explained that, although mental stressors, such as fear, anger and other emotions may acutely result in elevated blood pressure, the current medical literature did not yet support a cause and effect relationship between mental illness and chronic hypertension. 

In a November 2012 VA medical opinion a VA physician was asked to provide opinions regarding the Veteran's hypertension. After a review of the claims file and relevant medical literature which was attached to the opinion, the VA physician opined that it was his medical opinion that the Veteran's claimed condition of hypertension was less likely than not proximately due to or the result of the Veteran's service-connected DMII. He also opined that that hypertension was less likely than not proximately due to or the result of the Veteran's non-service connected condition of mental disorder, to include bipolar disorder, most current episode hypomanic; cannabis abuse. The VA physician noted that, as discussed in the relevant literature, DMII developed from a pre-diabetic state (metabolic syndrome), which included hypertension as a precondition. He also noted that diabetes and hypertension were strongly associated, but with hypertension as a precondition for diabetes, not the other way around. The VA physician explained that, as discussed in the attached literature, the two most common causes of chronic kidney disease (chronic renal insufficiency) were hypertension and diabetes and the Veteran's chronic kidney disease could be due to either or both, as the September VA examiner in the kidney diseases examination opined. He also found it would be mere speculation to attempt to determine what portion of the Veteran's chronic kidney disease was due to hypertension and diabetes. 

The VA physician noted that the Veteran had chronic renal insufficiency and that hypertension, which occurred with end stage renal disease, when dialysis was needed because the kidney was no longer able to manage Na+ and fluids, was not caused by early stage III kidney disease. He noted that while mental disorders and hypertension could co-exist, hypertension was not caused by mental disorders. 

Entitlement to service connection for hypertension, to include as secondary to  service-connected DMII or service-connected ischemic heart disease, is not warranted. The Veteran is currently diagnosed with hypertension and is service-connected for DMII and ischemic heart disease; however, the probative evidence of record does not demonstrate a nexus between the Veteran's currently diagnosed hypertension and either his active service, or any service-connected disability, to include DMII or ischemic heart disease. 

While not dispositive of the issue of whether service connection may be granted, the service treatment reports are absent of any treatment, findings or complaints related to the hypertension during the Veteran's active service. 

The post-service medical evidence of record does not demonstrate a diagnosed hypertension disability until February 1996, approximately 29 years after the Veteran's discharge from active service. Even considering the February 1999 letter by Dr. Phillip W. Cushman which indicates the Veteran had elevated blood pressure as early as June 1993, there was no report of a diagnosis of hypertension and this report dates the Veteran's elevated blood pressure to approximately 26 years after his discharge from service. Therefore, the record evidence indicates no showing that the Veteran's hypertension was manifested to a compensable degree within a year following service for presumptive service connection purposes. 38 C.F.R. §§ 3.307, 3.309. 

There is no competent and therefore probative evidence which links the Veteran's hypertension to service or to his service-connected disorders. The Veteran is competent to report that treatment for his hypertension began in the early 1970s, which he reported in the February 1998 VA examination, and that he had high blood pressure checked in service, which he reported in the February 2005 Travel Board hearing. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

However, he is not competent to diagnose or medically attribute any in-service symptom or any treatment for a condition to a current disorder or to relate his current hypertension disability to any other service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The evidence does not demonstrate that the Veteran has the requisite medical competence to diagnose or identify hypertension or high blood pressure or identify any etiology. As in Jandreau, the Veteran's assertions of causality have been investigated by competent medical professionals and found without merit. 

Moreover, while competent, the statements regarding his treatment for hypertension since the early 1970s, as reported in the February 1998 VA examination, and his high blood pressure in service, as reported in the February 2005 Travel Board hearing, are not credible as they are internally inconsistent and are inconsistent with the contemporaneous medical evidence of record. 

The Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). As to some of the factors that go into making these determinations both the Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have provided guidance. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (stating that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.").

Most recently, the Federal Circuit ruled that the principle of a continuity of symptomatology discussed in 38 C.F.R. § 3.303(b) does not apply to any disease or condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's hypertension is a chronic disease or condition recognized under 38 C.F.R. § 3.309(a). 

The earliest indication of hypertension in the record was noted in a February 1996 VA outpatient treatment report; however a February 1999 letter by Dr. Phillip W. Cushman also indicates the Veteran had elevated blood pressure as early as June 1993. In fact, the Veteran's service treatment records do not reflect any complaints, treatment or findings high blood pressure or hypertension throughout his entire period of active service. In particular, the October 1963 in-service entrance examination and July 1967 separation examination revealed no abnormalities of the vascular system upon clinical evaluation and blood pressure readings were 128/66 in October 1963 and 130/70 in July 1967. In, addition the Veteran reported no history of high or low blood pressure or problems with blood pressure or hypertension in either the October 1963 or the July 1967 Reports of Medical History. Therefore, the statements regarding having high blood pressure checked in service and treatment for hypertension since the early 1970s are inconsistent with the contemporaneous medical evidence of record. Jandreau, supra. 

The medical records cited are highly probative both as to his subjective reports and their resulting objective findings. They were generated with a view towards ascertaining his then state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Accordingly, the lack of contemporaneous evidence in this instance diminishes the reliability of the lay statements provided by the Veteran that he had high blood pressure checked in service and had been treated for hypertension since the early 1970s and they are afforded no probative value.

The November 20007 and September 2011 VA examiners, as well as the November 2012 VA physician, while furnishing adequate opinions, found that: hypertension was not caused by or the result of his active military duty and was not causally related to his military service; hypertension was not caused by, a result of or aggravated by DMII; that it would only resort to mere speculation to opine whether or not the Veteran's current hypertension was caused or aggravated to any degree by his service-connected ischemic heart disease; that hypertension was less likely than not proximately due to or the result of the Veteran's service-connected DMII; and that hypertension was less likely than not proximately due to or the result of the Veteran's non-service connected condition of mental disorder, to include bipolar disorder, most current episode hypomanic; cannabis abuse, In so finding, the VA examiners and VA physician provided comprehensive explanations for their conclusions, which were based upon their own expertise, medical literature and a review of the claims file. 

Accordingly, the preponderance of the evidence is against the claim. Service connection for hypertension, to include as secondary to service-connected DMII or service-connected ischemic heart disease, is not warranted and the appeal will be denied. 

In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. 
§ 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).




3. Service Connection for Bipolar Disorder

The Veteran contends that he was treated for anxiety and depression in service and that these symptoms have continued since his separation from active service. 

As noted above, the Veteran's service records demonstrate that he served in the Republic of Vietnam during the Vietnam War from January 1966 to January 1967 with a primary duty title of weapons mechanic. 

Service treatment reports reflect that, upon entrance into active service, the October 1963 entrance examination revealed no abnormalities of the psychiatric system upon clinical evaluation and the Veteran reported no history of psychiatric conditions in the October 1963 Report of Medical History. In August 1965, the Veteran was treated for complaints of nervousness. Thereafter, in September 1965, the Veteran was noted to have chronic nervousness and was referred for a consultation. In a September 1965 consultation the Veteran's history of latent and chronic anxiety in relation to parental conflict and problems with goals in his life was noted. Later in September 1965, he was found to have slight depression. In an October 1965 follow up report to the September 1965 consultation, the Veteran was disqualified temporarily under "35-9" and the service medical officer noted that he felt the Veteran had good insight and represented no true risk but was taken out of his duty by his supervisor. 

In December 1965, the Veteran underwent a medical evaluation for the Human Reliability Program under AFR 35-9, and was noted to have been screened and cleared later that same month. In the July 1967 separation examination, a clinical evaluation revealed no abnormalities of the psychiatric system and the Veteran reported no history of psychiatric conditions in the July 1967 Report of Medical History. 

VA outpatient treatment reports from November 1995 to October 2012 reflect that a history of major depression without psychosis was initially noted in November 1995 and a history of depression and no psychosis was again noted in January 1996. Depression was thereafter noted in the Veteran's medical problems in a February 1996 VA outpatient treatment report. In July 1997, rule out primary bipolar disorder was initially diagnosed. Thereafter, bipolar affective disorder was initially diagnosed in August 1997. Subsequent VA outpatient treatment reports reflect that the Veteran was treated for and diagnosed with bipolar affective disorder, also characterized as bipolar disorder. 

In a February 1998 VA examination, the Veteran reported a long standing history of polysubstance abuse and a history of anger in the military. However, the examiner found the Veteran did not, presently or by history, fit the criteria of bipolar affective disorder and he did not fit the criteria for posttraumatic stress disorder (PTSD). The Veteran was diagnosed with a history of alcohol dependence, a history of marijuana dependence, a history of cocaine dependence, a history of narcotic dependence, and a history of substance induced mood disorder. 

In a February 1999 letter, the Veteran's private physician, Dr. Cushman, reported that he first consulted with the Veteran in June 1993, when he reported a long history of psychiatric symptoms, including poor sleep, nightmares, concentration and memory problems, depression and suicidal thoughts. Dr. Cushman also noted the Veteran indicated having used Prozac and Zoloft for psychiatric symptoms in the past and he was put on medication again, Prozac and Xanax. He stated the Veteran had reported a history of service in the Republic of Vietnam, where he had "seen terrible things" which he could not describe and he had a great deal of trouble with irritability and mood swings over the years since that time. Dr. Cushman indicated that, at that time the Veteran's diagnosis was bipolar disorder, mixed, and he had last seen him in October 1995. 

In a March 1999 statement, the Veteran's spouse reported that she met the Veteran when he had returned from Vietnam and reported that, at that time, the Veteran was very uncomfortable eating around people and going out, because he felt as if he had been living like an animal and was self-conscious. She also reported the Veteran's symptoms throughout their marriage, including anxiety attacks and nightmares. 

In a February 2005 Travel Board hearing, the Veteran testified that he was treated for depression in service and that symptoms had continued since that time. He stated that he was diagnosed as bipolar about nine or 10 years earlier. The Veteran testified that he was currently under a physician's care at a VA medical center (VAMC) and that he showed his service records to his treating VA physician and could get him to furnish an opinion. The Veteran's spouse testified that they had been married for 35 years and she had met him when he had just come back from Vietnam. She reported that, since that time they had met, he had symptoms including panic attacks and anxiety, which occurred within a year of his discharge from the military. 

In a December 2005 VA treatment report, the Veteran was diagnosed with major depression, a history of dysthymic disorder and a history of cannabis dependence. The VA physician noted that the Veteran's symptoms of depression had continued to increase since he was last seen.  He reviewed information in reference to the Veteran's service record, including treatment of anxiety and depression with antidepressants, to which the VA physician found that the Veteran's chronic symptoms of depression could be linked. 

In a November 2007 VA examination the Veteran reported treatment during his military service for depression. However, the examiner noted that the claims file did not reflect the Veteran was treated for a mood disorder in the military. The Veteran was diagnosed with bipolar II disorder and cannabis abuse. The examiner found that, although the Veteran stated he was treated for depression during his active service, the examiner was unable to find any records noting that he was diagnosed with a mood disorder in the military. He noted there were records reflecting that the Veteran was treated for substance abuse within a few years after his discharge from active service, although the Veteran denied abuse of alcohol or drugs during that period. He also found the Veteran did not begin to receive mental health treatment for depression or bipolar disorder for a number of years following discharge from active service and some records suggested that the treatment for the mood disorder at that time was related to substance abuse. Therefore, he opined that it was less likely than not that the Veteran's current bipolar II disorder either had its onset during active military service or was causally related in some way to his military service. 

In this case, the November 2007 VA examiner's opinion appears to have been based  on an inaccurate factual premise, namely relying on the fact that the Veteran was not treated for a mood disorder in the military, which he used to discount the Veteran's report of treatment for depression in service. By contrast the service treatment reports do reflect the Veteran was treated for both anxiety and depression from August 1965 to September 1965 with follow up treatment noted in October 1965 and December 1965. Thus, the November 2007 VA examination and opinion is inadequate for adjudication purposes and is afforded no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). It also appears that the December 2010 Joint Motion also found this opinion was inadequate on the same basis, however, they referred to this as the December 2005 VA examination, rather than the November 2007 VA examination in their discussion.  See Joint Motion dated December 2010, p. 13.  

In a September 2011 VA examination, the Veteran was diagnosed with bipolar I disorder, most current episode, hypomanic, and cannabis abuse. The examiner noted the Veteran's treatment for nervousness, anxiety and slight depression in August 1965 and September 1965. The examiner opined that it was less likely than not that the Veteran's current bipolar disorder was causally related to the Veteran's active duty service. Significantly, the examiner found that the service medical records merely mentioned complaints of anxiety and slight depression which related to parental conflict and a lack of goals in life. He noted there was no mention of a mental disorder on the discharge examination and no objective medical evidence that a chronic condition developed within a year or two post-discharge. The examiner also noted that the first mention of mood related problems was in the context of substance abuse, which was many years after his service medical records were recorded when he was 19 years of age. He explained that bipolar disorder was documented in a treatment note in 1999 which was 34 years after the Veteran's military service and, due to this long interval of time, he could not form the nexus between this disorder and mental health complaints in service. 

The preponderance of the evidence is against the claim of entitlement to service connection for bipolar disorder with depression. The Veteran's essential account, as well as the observations of his wife as a witness since service, have been fully investigated by competent medical experts and are not supported. Jandreau, supra. Moreover, there is no competent medical evidence in support of the claim. 

As noted above, the Veteran's service treatment records reflect that he was treated for both anxiety and depression from August 1965 to September 1965 with follow up treatment noted in October 1965 and December 1965. 

The post-service medical evidence reflects the Veteran has a  current diagnosis of bipolar disorder with noted continued symptoms of depression, also characterized as bipolar affective disorder, bipolar I disorder and bipolar II disorder. However, his service treatment records have been obtained and the Veteran's essential allegation of continuing symptoms has been investigated by competent medical examiners who have found that his in-service treatment is not supportable of a connection to service.   

(ORDER ON NEXT PAGE)

















ORDER 

Service connection for bilateral hearing loss is granted. 

Service connection for tinnitus is granted. 

Service connection for hypertension, to include as secondary to an acquired psychiatric disorder, service-connected DMII or service-connected ischemic heart disease, is denied. 

Service connection for bipolar disorder with depression is denied. 




______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs