Citation Nr: 1330965	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  10-13 246	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.  

2. Entitlement to service connection for tinnitus.  

3. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active duty from March 1969 to March 1971.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The Veteran originally requested a Board hearing on his March 2010 appeal form, but withdrew the request in July 2012.  

The issues of entitlement to service connection for hearing loss and tinnitus are remanded to the RO via the Appeals Management Center (AMC); and are discussed in the REMAND section of this decision.


FINDING OF FACT

Hypertension is due to service-connected diabetes mellitus.  


CONCLUSIONS OF LAW

The criteria for service connection for hypertension have been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

In this decision, the Board grants entitlement to service connection for bilateral hearing loss, tinnitus and hypertension.  As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 West 2002 & Supp. 2013), is necessary.  

Service connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013).  Establishing service connection generally requires evidence of (1) a current disability; (2) lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2013).  

Service connection is provided for disability that is proximately due to or the result of a service connected disease or disability.  38 C.F.R. § 3.310(a).  

Here, the first element of service connection is established because VA treatment records from September 2007 onward establish the Veteran has hypertension.  VA treatment records dated in September 2007 show that hypertension and diabetes mellitus were discovered at the same time reportedly at an Agent Orange examination.  The Veteran has reported that he had received no medical treatment for many years prior to that examination.  

Service-connection has been established for diabetes mellitus; as presumptively due to herbicide exposure during his service in Vietnam.  38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307, 3.309(a)(6), 3.309(e) (2013).

A September 2008 VA examiner did not offer a rationale for the opinion that hypertension was less likely than not related to diabetes mellitus.  In February 2012, another VA examiner described the Veteran as having developed hypertension in 2007 while treated at VA.  His current hypertension was not controlled by medication.  The examiner stated that hypertension was less likely than not due to the service-connected diabetes mellitus.  Her reasoning was the Veteran was diagnosed with hypertension, diabetes mellitus type II and coronary artery disease all around the same time and it was difficult to establish what came first.  She did state that having diabetes increases the risk of developing high blood pressure.  

The examiner's reasoning implies that it was not possible to determine whether the diabetes or hypertension came first, but that if diabetes came first, the hypertension could be seen as proximately due to the diabetes.  The opinion provides no basis for finding that the diabetes preceded the hypertension.  In other words, the evidence is in equipoise on this question.  VA has a duty to resolve reasonable doubt in favor of the Veteran.  Resolving reasonable doubt in his favor, the evidence supports a finding that the current hypertension is proximately due to the service connected hypertension.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310.  


ORDER

Service connection for hypertension is granted.  


REMAND

VA examiners have opined the claimed hearing loss and tinnitus were not related to service because of a lack of hearing threshold shifts during service.  Service treatment records document shifts of as much as 20 decibels between the examination for induction into service and the examination for separation from service.  It is unclear whether the examiners failed to consider these shifts or found the shifts to be insignificant.

Accordingly, this case is REMANDED for the following:

The Veteran should be afforded a new examination to obtain an opinion as to whether his current hearing loss and tinnitus are related to service.  The examiner should note that the claims folder, including electronic records, was reviewed.

The examiner should provide an opinion as to whether; it is at least as likely as not that the current hearing loss or tinnitus is the result of a disease or injury in service.  

The examiner should provide reasons for the opinions.  The examiner should assume that the Veteran had noise exposure in service.  The examiner should also consider the apparent hearing threshold shifts between service induction and separation and any reported post-service noise exposure.

If the benefits sought on appeal are not fully granted, issue supplemental statement of the case, before returning the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or 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. 2013).



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs