Citation Nr: 1335528 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-14 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a disability manifested by blood in the stool. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee torn meniscus with degenerative joint disease. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 1985. He subsequently served in the reserves for more than 20 years, including periods of Active Duty for Training (ACDUTRA). These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2006 decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In April 2011, the Board remanded these issues for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. The Veteran also submitted additional evidence with a waiver of initial agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (2013). The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's hypertension is unrelated to his active and reserve military service. 2. The Veteran's disability manifested by blood in the stool is unrelated to his active and reserve military service. 3. The Veteran was exposed to loud noises during the course of his duties in the reserves. 4. The only medical opinion addressing the likely etiology of the Veteran's current bilateral hearing loss indicates that such is due to noise exposure during his reserve military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2013). 2. The criteria for establishing service connection for a disability manifested by blood in the stool have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2013). 3. The criteria for establishing service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA applies to the instant claims. VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In an April 2004 letter, issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. While the Veteran was not provided notification regarding how disability evaluations and effective dates are assigned, this is harmless error as the claims are being denied and no disability evaluation or effective date will be assigned. The record reflects that at the July 2010 hearing the undersigned explained the issues, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records and service personnel records, VA treatment records and examination reports, private treatment records, and hearing testimony. The Board notes that the Veteran has not been afforded a VA examination concerning his claims for service connection for hypertension and a disability manifested by blood in the stool. The Board, however, finds that no such examination is required in this case. As will be explained below, there is no medical or credible lay evidence indicating that either claimed disability is related to the Veteran's military service. Consequently, VA is under no duty to afford the Veteran a VA examination. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In addition, the Board notes that the case was remanded in April 2011 to attempt to obtain service records and VA treatment records. The requested VA treatment records were obtained and added to the file. Service records in addition to those already of record could not be obtained. The Louisiana State Adjutant General and the National Personnel Records Center were contacted in an attempt to obtain these records; however, in July and August 2011 responses, both agencies reported that they did not have the records. The Veteran was notified of VA's failure to obtain additional records in a September 2011 letter. Accordingly, the requirements of the remand were ultimately accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, VA has complied with its duties to notify and assist. Analysis Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2013); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may additionally be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106 (West 2002). Moreover, where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension or peptic ulcers become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1131, 1133 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Initially, the Board notes that service personnel records show active duty from August 1982 to August 1985, with only periods of ACDUTRA and INACDUTRA thereafter. At his hearing, the Veteran's representative suggested that during his time in the reserves the Veteran occasionally served on "special active duty" which "is the same type of orders and authority as any regular active duty Army soldier." Board Hearing Tr. at 4. To the extent the Veteran is asserting that this service was active duty, as defined by 38 U.S.C.A. § 101(22), the Board disagrees. Relevant to this case, "active duty" means full-time duty in the Armed Forces, other than active duty for training. 38 U.S.C.A. § 101(22) (West 2002). "Active duty for training" is full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101(23) (West 2002). As the Veteran was a member of the reserves while performing his duties after August 1985, this service would be ACDUTRA rather than active duty. I. Hypertension For VA purposes, hypertension means that the diastolic blood pressure is predominately 90 millimeters (mm.) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominately 160mm. or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101 Note (1) (2013); see also Gill v. Shinseki, --- Vet. App. ---, 2013 WL 5791119 (Vet. App. Oct. 28, 2013). The record is clear that the Veteran currently has hypertension. For example, a private treatment record from March 2005 shows a diagnosis of hypertension. Thus, the remaining question is whether the Veteran's hypertension is related to service. The evidence does not suggest, and the Veteran does not argue, that he had hypertension during his active duty service or that hypertension is otherwise related to his period of active duty. Instead the Veteran states that he first had elevated blood pressure readings in 2002, while in the reserves. Board Hearing Tr. at 6. The first report of elevated blood pressure by the Veteran was during a report of medical history in connection with a service retention examination in January 2002. Specifically, he reported that when he eats food or become physically active he somehow breaks out in hives and his blood pressure goes up. In addition, he noted that lately he had been having headaches with a rise in blood pressure and that he was going to a civilian hospital to determine if he had high blood pressure. Blood pressure at that examination was 136/83. Prior to this, the Veteran denied having high blood pressure on multiple occasions. VA treatment records show an elevated blood pressure reading in October 2002. An assessment of rule out hypertension was noted at that time. A review of the record reveals that a diagnosis of hypertension was first noted in medical records in March 2005. While the Veteran was diagnosed with hypertension during the time period when he was still a member of the reserves, there is no competent evidence linking hypertension to the Veteran's military service. There is no medical evidence suggesting any such link, and the Veteran and his representative have not identified any outstanding medical evidence that would provide this link. While the Veteran contends that he developed hypertension as a result of exposure to heat during reserve service, he is not competent to make such an assertion. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training or experience, but 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). Determining the etiology of hypertension is not a matter that can be observed, and requires specialized education, training or experience. Service connection for hypertension is also not warranted based on a theory of aggravation. A claimant seeking benefits based on aggravation of an injury or disease during ACDUTRA has the burden of showing that he experienced a permanent increase in disability beyond the natural progress of that disease or injury during his period of ACDUTRA. See Donnellan v. Shinseki, 24 Vet. App. 167, 174 (2010). In this case, the Veteran has offered no evidence indicating that his hypertension increased beyond the natural progress of that disease during a period of ACDUTRA. The Board notes that a mere showing of an increase in disability during the time the Veteran was a member of the reserves would not be enough; instead, there must be a worsening during a period of ACDUTRA. There is simply no evidence of that in this case. Given the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's hypertension was caused or aggravated by his active or reserve military service. II. Disability manifested by blood in stool The Veteran reports having blood in his stool; has been diagnosed with hemorrhoids, and as noted in a March 2005 private treatment record, has peptic ulcer disease status post partial gastrectomy. A current disability is clearly shown. The remaining question is whether a current disability manifested by blood in the stool is related to service. The evidence does not suggest, and the Veteran does not argue, that he had blood in his stool during his active duty service or that a disability manifested by blood in his stool is related to his period of active duty. Instead, the Veteran states that he started having blood in his stool while a member of the reserves. Board Hearing Tr. at 8-9. A review of the record reveals that the first complaint by the Veteran of blood in the stool was during a report of medical history in connection with a service retention examination in January 2002. Examination of the anus and rectum was normal at that time. VA treatment records reflect that in October 2002 the Veteran complained of occasional constipation and hemorrhoids to where he had bright red blood in his stool. In January 2008, the Veteran again complained of guaiac positive stools. A colonoscopy showed internal hemorrhoids. While the Veteran complained of blood in his stool and was diagnosed with a disability manifested by blood in the stool during the time period when he was still a member of the reserves, there is no competent evidence linking a disability manifested by blood in the stool to his military service. There is no medical evidence suggesting any such link, and the Veteran and his representative have not identified any outstanding medical evidence that would provide this link. The Veteran also has not offered any competent lay evidence suggesting a disability manifested by blood in the stool was caused by his reserve duties, as opposed to such a disability starting while he was a member of the reserves. Service connection for a disability manifested by blood in the stool is also not warranted based on a theory of aggravation. As noted above, it is the claimant's burden to show that he experienced a permanent increase in disability beyond the natural progress of a disease or injury during his period of ACDUTRA. See Donnellan, 24 Vet. App. at 174. In this case, the Veteran has offered no evidence indicating that a disability manifested by blood in the stool increased beyond the natural progress of that disease during a period of ACDUTRA. This is not suggested by the medical evidence and has not been alleged by the Veteran. Given the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a disability manifested by blood in the stool that was caused or aggravated by his active or reserve military service. III. Bilateral hearing loss For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). Hearing thresholds during the Veteran's active duty service are unknown. Audiometric testing during his reserve service reflects a hearing threshold shift at some of the relevant frequencies, indicating worsening hearing. Bilateral sensorineural high frequency hearing loss was noted in January 2002, during reserve service. After a May 2011 audiological examination and hearing test, a VA audiologist determined that the Veteran had bilateral high frequency sensorineural hearing loss. An audiogram reflected what would be considered a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The audiologist noted the Veteran's exposure to loud noises on active duty and in the reserves, including exposure to noise from gunfire, simulators, vehicles, and explosions. The audiologist stated that it is evident that the Veteran's hearing sensitivity shifted, bilaterally, during his reserve period, citing to service audiograms in the record. The audiologist then opined that it was as likely as not that the shift was due to noise exposure during the Veteran's reserve duty. Given the evidence of a shift in the Veteran's hearing sensitivity during his reserve service and the favorable medical opinion offered by the VA examiner in May 2011, the Board finds that the evidence is at least in equipoise and service connection for bilateral hearing loss is warranted. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a disability manifested by blood in the stool is denied. Entitlement to service connection for bilateral hearing loss is granted. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim for service connection for a left knee disability. In July 2011, a VA medical opinion was obtained regarding the etiology of the Veteran's left knee disability. The examiner's opinion was largely based on evidence showing a normal left knee on VA examination in March 2005 and the absence of evidence of a left knee disability prior to September 2010. However, there is an October 2006 private X-ray report showing minor degenerative changes in the Veteran's left knee. Given the examiner's stated rationale, and that the Veteran was in the reserves until at least May 2006, the medical opinion is inadequate without review and comment on this piece of evidence. As such, remand is necessary to obtain an addendum to the medical opinion. In addition, it does not appear that the Veteran has ever been provided notice as to what evidence is necessary to establish a claim for service connection on a secondary basis. This should be remedied on remand. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran corrective VCAA notice that includes an explanation as to the information or evidence needed to establish a claim for service connection on a secondary basis. 2. After the above has been accomplished, return the claims file to the examiner who conducted the July 2011 VA joints examination. The examiner is asked to provide the following opinion after review of the entire claims file (both the paper file and any electronic portion of the file): Is any currently diagnosed left knee disability at least as likely as not (50 percent probability or greater): (a) related to the Veteran's active duty service? (b) related to the Veteran's reserve service? (c) caused by the Veteran's service-connected right knee disability? (d) permanently aggravated by the Veteran's service-connected right knee disability? The examiner should specifically comment on the significance of the private X-ray report from October 2006 reflecting minor degenerative changes of the left knee. A complete rationale for all opinions expressed should be provided. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion should be rendered by another qualified examiner. 3. Then, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 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. 2013). ______________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs