Citation Nr: 1325797 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-20 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss (claimed as nerve damage to the ears). 2. Entitlement to service connection for hypertension (claimed as labile hypertension), including as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from June 1965 until June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In an April 2008 rating decision, the RO, in pertinent part, denied service connection hearing loss, bilaterally, claimed as hearing loss with nerve damage. In a May 2008 rating decision, the RO denied service connection for labile hypertension, secondary to service-connected PTSD. In July 2008, the Veteran requested a hearing before a decision review officer (DRO) at the RO. However, in May 2009, the Veteran withdrew that request. The Veteran has not requested any further RO or Board hearings. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. After the issuance of the statement of the case in May 2009, the Veteran submitted additional evidence, including a July 2008 medical statement from Dr. P.F., additional audiology private medical records and a lay statement. The Veteran, however, submitted that evidence with a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). As such, the Veteran is not prejudiced by the Board's consideration of this evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In regards to the claim for service connection for bilateral hearing loss, as will be explained herein, the Board finds that a new VA medical opinion is necessary. The Veteran's service treatment records, prior to June 4, 1967, document normal audiological findings under 38 C.F.R. § 3.385. The Board notes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. However, even following that conversion, the Veteran had normal audiological findings under 38 C.F.R. § 3.385. Post-service private medical records document numerous complaints of, or treatment for, hearing loss. For example, a July 1997 audiogram report documented findings of symmetrical hearing within normal limits through 1000 Hz, falling to a mild to severe sensorineural hearing loss in the higher frequencies. In a November 2006 private medical record, Dr. A.H.M. noted the Veteran's reported noise exposure in Vietnam, including from helicopters and the firing of mortar rounds. The Veteran reported that on days when more rounds were fired, he would not be able to hear for several days afterwards. He also reported that he did not wear hearing protection. In a June 2007 statement attached to his claim, the Veteran reported that he did not wear ear protection and that sometimes his ears would ring for days after performing perimeter defense with howitzers. He also reported noise from mortar shells and that his hearing declined rapidly following service. The Veteran underwent a VA examination in February 2008. The examiner noted the normal hearing findings in the Veteran's service treatment records, and found that with the evidence provided in the service treatment records it is less likely that the bilateral hearing loss was due to military noise exposure. Unfortunately, the VA examiner's medical opinion was inadequate in addressing the bilateral hearing loss claim. The VA examiner appears to base her opinion on the fact that the Veteran did not have demonstrated hearing loss in service and did not provide any further explanation for her opinion. The Court has held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Additionally, the VA examiner did not discuss any of the Veteran's lay assertions, such as his reported, significant noise exposure in service. An examiner may not ignore that lay evidence and base her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, an addendum VA medical opinion by the February 2008 VA examiner is necessary (or a new VA medical opinion if the February 2008 VA examiner is unavailable) to provide an adequate medical opinion. In regards to the claim for service connection for hypertension, including as secondary to PTSD, the Board finds that a new VA examination is necessary. The Veteran contends that his PTSD caused his hypertension. In the July 2013 written brief presentation, the Veteran's representative argued that service treatment records indicate that the Veteran had hypertension prior to service. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The March 1965 service examination, prior to active service, documents that the Veteran reported "occasional, intermittent high blood pressure within the past year...Was told by private physician not to worry and blood pressure would probably return to normal." The examiner also noted that on that day, the Veteran's blood pressure was within normal limits. In his May 1967 report of medical history, prior to separation, the examiner noted that the Veteran had been treated on one occasion at the age of 21 for high blood pressure. Both the March 1965 and May 1967 examiners found that the Veteran's heart and vascular system were normal. The post-service private medical records document numerous complaints of, and treatment for, hypertension. The first record of hypertension is an August 1979 report of labile hypertension. Subsequent records document continued treatment for hypertension. In May 2008, the Veteran underwent a VA examination for hypertension. The examiner opined that it is less likely as not that hypertension is caused by or a result of PTSD. Rather, the examiner found that essential hypertension was the most common cause of hypertension and is the most likely cause in the Veteran. The VA examiner did not indicate whether the Veteran's current hypertension pre-existed his service, was caused or aggravated by service, developed within a year of his separation from service, or was aggravated by his service-connected PTSD. The Board also notes that in a May 2009 statement, the Veteran reported that the May 2008 VA examiner had provided incorrect information in his report. As such, a new VA examination is necessary to determine whether the Veteran has hypertension that is related to his service or his service-connected PTSD. See Barr, supra. Finally, the Board notes that no VA medical records have been associated with the claims file since October 2008. VA has a statutory duty to assist a claimant in obtaining relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain. See 38 U.S.C. § 5103A(b), (c)(3); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following: 1. The AOJ should obtain VA treatment records from the Alabama VA Healthcare System dated from October 2008 to the present concerning treatment for hypertension. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Once the VA medical records have been associated with the claims file, the AOJ should return the claims file to the May 2008 VA audio examiner. The claims file and a full copy of this REMAND must be made available to the examiner. If the May 2008 VA audio examiner is not available, the claims file and a full copy of this REMAND should be provided to an appropriate medical professional to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should note that for the service department audiometric readings prior to October 31, 1967. Those readings must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Following a review of the paper and Virtual claims files, which includes VA treatment records, and the conversion of the service audiometric readings from ASA to ISO units, the VA medical opinion provider should offer an opinion on the following: (a) Does the Veteran currently have bilateral hearing loss? (b) Is it at least as likely as not that any bilateral hearing loss is related to the Veteran's active service? The VA medical opinion provider should specifically consider the Veteran's reported noise exposure, including: (i) over a hundred hours in a helicopter, (ii) the firing of mortar rounds and (iii) being around howitzers. The VA medical opinion provider should also consider the Veteran's reports of: (i) not wearing hearing protection in service, (ii) sometimes having ringing ears for days after performing perimeter defense with howitzers and (iii) rapidly declining hearing following service. A complete explanation must be given for all opinions and conclusions expressed. 3. Once the VA medical records have been associated with the claims file, the AOJ should obtain a new VA examination for the hypertension claim. The claims file and a full copy of this REMAND must be made available to the examiner. Following a review of the paper and Virtual claims files, which includes VA treatment records, the VA medical opinion provider should offer an opinion on the following: (a) Does the Veteran currently have hypertension? If so, please specify the type(s) of hypertension. (b) Does the evidence of record clearly and unmistakably show that the Veteran had hypertension that existed prior to his entry into active duty in June 1965? If so, what type of hypertension? (c) If the answer to subsection (b) is yes, does the evidence of record clearly and unmistakably show that the preexisting hypertension was not aggravated by service (d) If the answer to subsection (c) is yes, state whether there is an clear and unmistakable evidence that any increase in disability in service is due to the natural progression of the disease? Please identify any such evidence with specificity. (e) If there is no clear and unmistakable evidence that the Veteran's hypertension existed prior to service and there is no clear and unmistakable evidence that hypertension was not aggravated by service state whether it is it at least as likely as not (50-50 probability) that any currently diagnosed hypertension is related to the Veteran's military service or developed within a year of his June 1967 separation from service? The examiner should address whether it is at least as likely as not that the Veteran presented signs of any currently diagnosed hypertension disorder during service or within one year following the Veteran's June 1967 service discharge. The examiner's attention is directed to March 1965 service examination, prior to active service, wherein the examiner found normal heart and vascular system and documented the Veteran report of "occasional, intermittent high blood pressure within the past year...Was told by private physician not to worry and blood pressure would probably return to normal." That examiner also noted that on that day, the Veteran's blood pressure was within normal limits. The examiner should also consider the in-service blood pressure findings, including the May 1967 separation examination report documenting a normal heart and vascular system and the report of medical history, noting that the Veteran had been treated on one occasion at the age of 21 for high blood pressure. (f) Is it at least as likely as not that the any currently diagnosed hypertension was caused by the Veteran's service-connected PTSD? If it is determined that hypertension was not caused by the service-connected PTSD, please state whether the service-connected PTSD aggravates (increases the severity of hypertension). If aggravation is found, please state whether such aggravation/increase is beyond the natural progress of hypertension. The examiner must identify that aspect of the disability which is due to aggravation. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete explanation must be given for all opinions and conclusions expressed. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).