Citation Nr: 1327889 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 09-31 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure or as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to an initial compensable evaluation for bilateral hearing loss prior to December 2, 2009. 3. Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss since December 2, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty with the United States Army from July 1950 to July 1953, and from August 1953 to August 1970. The Veteran is a holder of the Combat Infantryman Badge and served a tour of duty in Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Jackson, Mississippi, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which declined to reopen a previously denied claim of service connection for hypertension, and granted service connection for bilateral hearing loss, rated 0 percent disabling effective from July 16, 2008. During the pendency of the appeal, a Decision Review Officer (DRO) decision of February 2010 granted an increased initial 10 percent evaluation for hearing loss, effective December 2, 2009. The Veteran has expressed his desire to continue his appeal with regard to both stages of evaluation for his hearing loss disability. In August 2012, the Board remanded the appellate issues for further development. At that time the Board also noted that the issue with regard to hypertension required recharacterization; although entitlement to the benefit sought had been previously denied in July 1977, September 1978, and October 2006 rating decisions, additional relevant service department records had been received in 2011. Regulations therefore required de novo reconsideration of the claim, not reopening via submission of new and material evidence. 38 C.F.R. § 3.156(c). At that time the Board also noted that a claim for an earlier effective date of service connection for hearing loss had been raised by the Veteran in March 2010 correspondence. That question was referred to the RO for appropriate action. It does not appear that any action has yet been taken on such claim, and accordingly, the issue is again referred. The Veteran requested an in-person hearing before a Veterans Law Judge, to be held at the RO (Travel Board), in August 2009. However, in written statements received in September 2011 and May 2012, the Veteran withdrew his hearing request. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. The issues regarding evaluation of service-connected hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Hypertension was not first manifested on active duty service or within the first post-service year; the preponderance of the evidence is against finding that hypertension is related to active service, to include as a result of presumed herbicide exposure. 2. Hypertension is not due to or aggravated by the service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection of hypertension are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). An August 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the duty to assist, the Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The claims file reflects that some records for the period immediately following service, from various military medical centers where he was treated as a retiree, have been submitted or obtained; these include records from 1970, 1971, 1978, and 1987 to 1992, which were secured in connection with earlier claims. The Appeals Management Center attempted to obtain additional records from Beach Army Hospital, however, the National Personnel Records Center indicated that the facility was not included in its index. The Veteran was notified of the negative search results by telephone in April 2013 and indicated that he did not have the records and believed that the facility closed in 1971. See 38 C.F.R. § 3.159(e) (2012). The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA examinations have been afforded the Veteran with respect to the claim decided herein. Examiners have performed examinations, considered the relevant evidence following review of the claims file, and offered requested medical opinions with supporting rationales when necessary. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations are therefore adequate for adjudication purposes. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). Other diseases are presumed service connected in Veterans who were exposed to herbicides. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). The Veteran, having served in Vietnam between January 1962 and May 1975, is presumed to have been so exposed. 38 C.F.R. § 3.307(a)(6)(iii). These presumptions are rebuttable. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). Hypertension is a listed chronic disease under 38 C.F.R. § 3.309(a), but is not a disease listed as associated with herbicide exposure under 38 C.F.R. § 3.309(e). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran alleges primarily that his hypertension initially manifested during his active duty service; alternatively, he states that there is evidence of hypertension during his first post-service year. He has also maintained that hypertension was caused or aggravated by his service-connected type II diabetes mellitus, or is a result of his established exposure to herbicides in Vietnam. With regard to the Veteran's primary allegation, that hypertension was first manifested on active duty, a review of service treatment records covering the entirety of his period of service reveals that on entry onto his first period of service, in July 1950, blood pressure was 120/60. At separation in July 1953, it was 124/66. The records contain complaints of or treatment for high blood pressure or hypertension. The Veteran reenlisted almost immediately, and at the August 1953 entry examination, a blood pressure of 120/90 was noted. In April 1959, blood pressure was 125/80; the Veteran noted at that examination for reenlistment that he had a history of high or low blood pressure. The examiner, however, noted no impairments or current diagnoses. In late 1962, the Veteran was in an accident and required surgery and hospitalization. Blood pressures were definitely elevated during this period, with a reading of 162/76 at hospitalization. Subsequent readings during his stay were generally in the 150's/80's. By August 1963, records show a blood pressure of 114/78 on a reenlistment examination. At reenlistment in April 1965, the Veteran denied any history of high or low blood pressures, and a reading of 122/90 was reported. At an April 1967 annual examination, blood pressure was 124/88. The Veteran underwent a retirement examination in June 1970, at which time he denied any history of high or low blood pressures in conjunction with a reading of 128/78. Another examination was performed in December 1970 for a recall to active duty; blood pressure was 126/90 at that time, and the Veteran denied any history of high or low blood pressures. Following service, the Veteran received treatment at the Beach Army Hospital. Records from 1970 and 1971 reveal that in late 1970, the Veteran was treated for various complaints regarding his jaw and eyes; no reference to his blood pressure is made. In February 1971, however, during a five day hospital admission for gastritis, elevated blood pressure of 140/98 was noted. The gastritis resolved prior to discharge, and at an April 1971 treatment for a foot injury, there was again no comment regarding blood pressure. No diagnosis of hypertension or prescription of medication was noted in the Beach Army Hospital records. As noted above, VA requested additional records for the period of 1971 to 1975, but was informed no such records could be located. In connection with a March 1976 claim, the Veteran reported that "high blood pressure" was noted in 1971. An examination was conducted in May 1977. The Veteran stated at that time that he had been informed he had "borderline hypertension" at discharge, but "nothing was done about it" until 1974, when a diagnosis of hypertension was first made following formal testing. He began taking medication, and continued to do so. Blood pressures were 126/96 and 124/94 when taken sitting in each arm. Essential hypertension, treated, with slightly elevated diastolic pressure was diagnosed. No opinion was noted regarding the etiology of hypertension or its relationship to service, if any. Service connection for hypertension was denied in a July 1977 rating decision, and confirmed in a decision from September 1978. A review of private and VA treatment records since that time reveal continued complaints of and treatment for hypertension. In July 1978, during surgery for an unrelated genitourinary condition, the continued use of medication was reported. Further, the Veteran has repeated his assertions of onset of hypertension during or soon after service. For example, in August 1992, a Tricare doctor at Lackland AFB noted a 22 year history of hypertension, which would date from 1970. In a July 2006 statement in support of his claim, the Veteran reported that his diagnosis with hypertension came in 1971, when he was told he was a borderline diabetic. A VA diabetes examination was conducted in July 2007; the examiner was directed to comment on hypertension if found to be related to diabetes. The examiner reviewed the claims file and noted that the diagnosis of hypertension predated that of diabetes. Renal function was normal. At a September 2008 VA diabetes examination, the examiner again noted the absence of any renal dysfunction and the diagnosis of hypertension "well before" the onset of diabetes. The examiner diagnosed poorly controlled essential hypertension and specified that such was not caused by or a result of diabetes mellitus. In January 2009, a VA Agent Orange Registry examination was afforded the Veteran. A diagnosis of essential hypertension was noted as part of the Veteran's past medical history; he reported being hospitalized twice in 1971 at Fort Walton [sic] for blood pressure, and had been hospitalized twice in the last year. No renal insufficiency was diagnosed based on current testing. A focused VA hypertension examination was performed in November 2011. The Veteran reported that he had a history of hypertension dating back to 1971, with poor control recently. The claims file was reviewed in conjunction with the examination. The examiner opined that there was no relationship between the Veteran's diabetes and hypertension, as there was no renal disease present, which was a required mechanism. In April 2013, in response to the August 2012 Board remand, the Veteran was again examined with regard to his hypertension claim. Following physical examination and a review of the claims file, the examiner discussed and responded to several Board inquiries, in full compliance with the remand mandates. The examiner first opined that hypertension was not related directly or presumptively to service. The blood pressure readings in service and the first post-service year were considered, and the examiner noted that they were insufficient to warrant a diagnosis of hypertension during or soon after service. Sustained, persistent elevation of blood pressures, on multiple occasions and in the absence of emotional or physical stress, was not shown. He found the Veteran's reports of diagnosis at separation or within a year thereof to be insufficient to outweigh the documented readings. He also opined that hypertension was not caused or aggravated by service-connected diabetes. First, hypertension predated diabetes. Second, in the absence of renal disease, there is no mechanism by which diabetes can aggravate hypertension. That is the only association between diabetes and hypertension, and such was not present in this case. The absence of any end organ damage in the presence of hypertension also indicated a lack of actual aggravation, regardless of source. Finally, the doctor noted that there was no established evidence of a nexus between herbicide exposure and hypertension. The Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for hypertension on any basis. The 2013 examiner reviewed the history and determined that hypertension was not manifested in service or within the year after discharge and provided a rationale. Medical records failed to show the persistent elevated readings required for diagnosis. At best, there are isolated readings which are closely associated with specific injury or illness, such as wrist surgery or gastritis. The April 2013 examiner specifically excludes such readings from any basis for diagnosis, aside from stressing their isolated nature. The Veteran is competent to report that he was diagnosed within a year of separation, but the Board finds such statements lack credibility. The records dated within one year of separation do not reflect diagnoses of hypertension and the Veteran's reports are themselves confused. He reports diagnosis in 1970, 1971, and 1974 at various times. He states at times he received a definitive diagnosis, and at others that he was "borderline," which is not a qualifying and timely diagnosis. The Veteran is not a reliable historian, and his statements are therefore outweighed by the objective medical evidence, including the VA examiner's opinion, which was supported by a rationale. Accordingly, service connection on a direct or presumptive basis is not warranted. Service connection as secondary to diabetes mellitus must also be denied. The fact that hypertension preceded the diagnosis of diabetes by several decades, at best, is strong evidence against a causative relationship, and the doctors offering an opinion are uniform in finding that because of the order in which the conditions were diagnosed, hypertension was not caused by diabetes. Further, those examiners offering opinions with regard to the question of aggravation of hypertension by diabetes unanimously note that there is no currently shown mechanism by which diabetes can impact blood pressure. Hypertension associated with diabetes is caused by renal disease, and objective testing has repeatedly demonstrated that no such kidney dysfunction is present here. The Veteran's hypertension is essential, not diabetic in nature. Finally, there is no competent and credible evidence of record associating hypertension with exposure to herbicides. It is not a listed presumptive condition, meaning the Secretary has not determined that the evidence of association does not equal or exceed that against association. 38 C.F.R. § 3.309(e). Moreover, the April 2013 VA examiner stressed that there was no known evidence relating herbicide exposure to hypertension. Although the Veteran has expressed his belief in a relationship, he is not competent to render such an opinion, as this requires specialized medical and scientific knowledge he is not shown or alleged to possess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He is not merely reporting an observed cause and effect relationship. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Based on the VA examiner's assertion and opinion, the claim must be denied. The weight of the evidence is against the claim; there is no doubt to be resolved. Service connection for hypertension is not warranted. ORDER Service connection for hypertension is denied. REMAND With regard to the claim for increased evaluation for a service-connected hearing loss disability, further remand is required to obtain relevant VA treatment records in compliance with the duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Review of the electronic records contained in the Virtual VA system reveals that on three separate occasions, audiometric testing was conducted for evaluation of hearing aid function, or for an annual assessment. While the outpatient records from May 30, 2006; July 28, 2011; and November 15, 2012, include summaries of the audiometry results, the puretone thresholds and speech recognition scores necessary for application of the Rating Schedule are not provided. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) 1. Obtain the results of VA audiological testing that was completed on the following dates: a. May 30, 2006; b. July 28, 2011; and c. November 15, 2012. The results of audiometric testing, to include puretone threshold findings from 1000 Hz. to 4000 Hz. and speech recognition scores should be obtained. If the complete results are not available electronically, the VA facility should be contacted in order to obtain the requested information. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs