Citation Nr: 1335748	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  10-20 471	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to a separate compensable rating for hypertension.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Adams, Counsel
INTRODUCTION

The Veteran served on active duty from May 1970 to December 1971.

These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which granted service connection and assigned a 20 percent rating for type II diabetes mellitus with hypertension and erectile dysfunction; granted service connection and assigned a 10 percent rating for tinnitus; granted special monthly compensation based on loss of use of a creative organ; and denied service connection for bilateral hearing loss, vision problems, and PTSD.

In October 2010, the Veteran testified before a Decision Review Officer.  The Veteran subsequently testified before the undersigned Veterans Law Judge in April 2013.  Transcripts of both hearings are of record.  At the conclusion of the April 2013 hearing, the Board left the record open for 60 days so the Veteran could obtain additional evidence in support of his claims.  During that hearing, the Veteran submitted additional evidence with a waiver of RO consideration.  38 C.F.R. § 20.1304 (2013).  Therefore, the Board may properly consider such newly received evidence.

In an October 2010 statement, prior to the claims being certified to the Board, the Veteran withdrew the appeal of the issues of entitlement to an increased rating for erectile dysfunction and service connection for a vision disorder.  As such, the Board finds that these issues are no longer in appellate status and are not before the Board at this time.  In addition, service connection was granted for anxiety disorder NOS with PTSD in an October 2012 rating decision.  Thus, as the benefit sought has been awarded in full, that issue is no longer before the Board.

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system.


FINDINGS OF FACT

1.  The Veteran served as an infantryman during military service in the U.S. Army, and was exposed to such acoustic trauma as 175 millimeter (mm) howitzers, explosions, and helicopters during service.

2.  The record contains competent medical and lay evidence indicating that the Veteran has bilateral hearing loss disability according to VA standards, which is causally related to his military service.

3.  The Veteran's hypertension has required continuous medication for control since 1986, likely because of a history of diastolic pressure predominately 100; however, the evidence of record does not reflect diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss disability was incurred in active military service and service connection for this disability is warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).

2.  The criteria for a separate 10 percent disability rating for hypertension have been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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) (2013).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.

Regarding the Veteran's claim for service connection for bilateral hearing loss, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim.  Wensch v. Principi, 15 Vet. App. 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim").  Indeed, given the favorable disposition of the claim for service connection for bilateral hearing loss, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished.

Regarding the Veteran's claim for a separate compensable rating for hypertension, this appeal arises from disagreement with the initial evaluations following the grant of service connection for diabetes mellitus.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Regardless, the RO provided notice as to how VA assigns disability ratings in a letter sent to the Veteran in January 2009.
Regarding VA's statutory duty to assist in claims development, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the hypertension claim.  Pertinent medical evidence associated with the claims files consists of service and VA treatment records, private treatment records, and the reports of July 2009 VA diabetes and hypertension examinations.  A review of those reports of examination reveals that all subjective and objective findings necessary for evaluation of the Veteran's hypertension claim were observed and recorded.  The Board finds that these examinations are adequate for adjudication purposes.  Barr v. Nicholson, 21 Vet. App. 303 (2007).   Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4).

The Board recognizes that the last hypertension examination is now over four (4) years old.  The mere passage of time since that examination is not reason enough, alone, to require reexamination.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's hypertension since the July 2009 VA examination.  The Veteran has not argued the contrary.

The Veteran has been afforded hearings before a Decision Review Officer (DRO) in October 2010 and the undersigned Veterans Law Judge in April 2013 in which presented oral argument in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the hearing officer who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.

Here, during the October 2010 DRO and April 2013 BVA hearings, the DRO and VLJ identified the issues on appeal.  The hearing discussion did not reveal any evidence that might be available that had not been submitted.  At the April 2013 hearing, the VLJ explained to the Veteran that his representative was unable to represent him at the hearing, but he decided to proceed with the hearing.  During both hearings, questions were asked with respect to the severity of the Veteran's hypertension.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained.  See Bryant, 23 Vet. App. at 497.  No outstanding evidence pertaining to the hypertension claim has been identified.  As such, the Board finds that, consistent with Bryant, the DRO and VLJs complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record.

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.

II.  Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

Lay evidence has been held to be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006).  Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection.  Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096  (Nov. 9, 2000).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

The Veteran claims that he has hearing loss due to acoustic trauma during service as an infantryman during combat.

The Board finds that the medical evidence of record supports the Veteran's contention that he has a bilateral sensorineural hearing loss disability that is causally related to noise exposure he experienced in service.  The Veteran reported a history of military noise exposure due to service, and the Veteran's DD Form 214 states that the Veteran's military occupational specialty was "light weapons infantryman."  According to the Veteran, he had in-service noise exposure from 175 mm howitzers, helicopters, and explosions.  In the August 2009 rating decision on appeal which granted service connection for tinnitus, the RO conceded exposure to acoustic trauma from small arms fire based on the Veteran's service as a light weapons infantryman.  Notably, stressor verification in connection with his claim for service connection for his now service-connected PTSD confirmed the Veteran's engagements with an enemy in June 1971 and September 1971.  As such, the Board finds that exposure to acoustic trauma in service is consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a) and (b) (West 2002).

Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran's STRs are void of any diagnosis of bilateral hearing loss.

On pre-induction audiological evaluation in August 1955, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
X
5
LEFT
0
0
0
X
5

On separation audiological evaluation in November 1971, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
/
10
LEFT
10
10
10
/
10

Private treatment records include a December 2004 report which indicates a complaint of decreased hearing and a diagnosis of conductive hearing loss.

In a February 2009 hearing loss and tinnitus questionnaire, the Veteran indicated that during service he was assigned to a combat troop during which he was exposed to acoustic trauma from artillery, aircraft, and tanks.  After service, he was employed in an area that did not require hearing protection.

On VA audio examination in June 2009, the examiner noted that the Veteran's induction physical and separation examinations contained audiometric data which showed normal hearing bilaterally.  The examiner noted the Veteran's history of service in light weaponry and post-service employment that included some noise exposure on a production floor.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
25
40
65
LEFT
30
35
50
60
65

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 92 percent in the left ear.  The examiner diagnosed normal to moderately severe bilateral sensorineural hearing loss.  The examiner opined that the Veteran's tinnitus was as least as likely as not the result of military activity, but that his hearing loss did not result from military activity based on the rationale that the STRs contained audiometric evidence that his hearing status was clinically normal, bilaterally, at the time of this separation from service.

In this regard, the VA audiological examiner based the opinion, in part, on the absence of any hearing loss during the Veteran's service and did not provide any reason why the Veteran's in-service acoustic trauma was not a source of his current bilateral hearing loss; the Board points out that the VA audiological examiner acknowledged that the Veteran had noise exposure during service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993) ("[§ 3.385] operates to establish when a measured hearing loss is...a 'disability' for which compensation may be paid, provided that the requirements for service connection are otherwise met...").  Further, in Hensley, the Court indicated that a veteran need not have met the requirements of 38 C.F.R. § 3.385 while in service, only presently.  Hensley, 5 Vet. App. at 158-59.  See also, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  The VA examiner's conclusory opinion based in part on the absence of documented hearing loss at discharge from service does not mean that there is no nexus between the Veteran's current hearing loss and his in-service noise exposure which lessens its probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that most of the probative value of a medical opinion comes from its reasoning).  Additionally, the same examiner related the Veteran's tinnitus to his service based on military noise exposure.  In this regard, it seems counterintuitive to relate the Veteran's tinnitus to military acoustic trauma while alternatively finding that his bilateral hearing loss is not related to military acoustic trauma, especially considering the fact that the examiner has identified no other etiology for the Veteran's bilateral hearing loss.

In addition, the Veteran consistently and credibly contended that in-service noise exposure caused his bilateral hearing loss and that it has been continuing to the present.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Moreover, the Board finds that the examiner's opinion regarding hearing loss was apparently based, in part, on an erroneous assumption that service connection for this condition required a documentary showing of hearing loss in service.  Simply put, had the VA examiner known that such a documentary showing was not required, the Board believes that the VA examiner would have opined a relationship between hearing loss and the Veteran's period of active service considering that the examiner found that the Veteran's tinnitus was related to acoustic trauma during his service.  Thus, the Board finds that to the extent it is probative, the June 2009 medical opinion actually supports the Veteran's claim.  The Veteran is also competent to observe the presence of bilateral hearing loss during and after his service and the Board finds his account of in-service onset of bilateral hearing loss to be additional probative evidence in support of his claim.  The Veteran's statements as to his symptoms and experience additionally support a finding of both chronicity and continuing disability.  Consequently, the competent and credible medical evidence of record supports the Veteran's claim.

The evidence in this case is at least in equipoise with regard to the cause of the Veteran's current bilateral hearing loss.  Accordingly, service connection is warranted for the Veteran's bilateral hearing loss disability.

III.  Separate Rating Claim

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran.  See 38 C.F.R. § 4.3 (2013). 

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).  In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2013).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

In this case, the Veteran is seeking a separate compensable rating for his service-connected hypertension.  As noted in the Introduction, in the August 2009 rating decision on appeal, the RO granted service connection and assigned a 20 percent rating for type II diabetes mellitus type II with hypertension and erectile dysfunction, effective October 6, 2007.  In that decision, the RO determined that the hypertension was noncompensable under the governing legal criteria.  38 C.F.R. § 4.104, DC 7101 (2013).  As such, no separate rating was established.  See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1 (2013).

Under Diagnostic Code 7101, hypertension or isolated systolic hypertension with diastolic blood pressure of predominantly 100 or more, or systolic pressure predominately 160 or more, or a history of diastolic pressure predominately 100 or more which requires continuous medication for control, warrants a 10 percent rating.  A 20 percent rating requires diastolic blood pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more.  A 40 percent rating is warranted for diastolic blood pressure of predominantly 120 or more, and a 60 percent rating is warranted for diastolic blood pressure of predominantly 130 or more.  38 C.F.R. § 4.104, DC 7101 (2013).

Private treatment records dated from 1986 to November 2010 document that with the exception of systolic readings of 158 in December 2009 and 161 and 164 in November 2010, the Veteran's systolic pressure was predominantly less than 160.  These records also show that the Veteran's diastolic pressure was never over 87.

On VA diabetes mellitus and hypertension examination in July 2009 blood pressure readings were 120/60, 124/60, and 118/64.  It was noted that the Veteran was placed on blood pressure medication in July 1986 and an ACE inhibitor in January 2004.  In August 2005, he was prescribed Diovan.  The examiner noted that the Veteran retired in June 2005 due to eligibility by age or duration of work and indicated that continuous medication was required for control of the Veteran's hypertension.  VA treatment records dated from October 2009 to September 2012 indicate that the Veteran was prescribed Lisinopril for control of his hypertension and reflect systolic pressures of no more than 146 and diastolic pressures of no more than 81.  

In this case the Veteran has been on continuous medication for control of his hypertension since 1986.  The Board finds that the evidence is in equipoise as to whether there is a history of diastolic pressure predominately 100 or more prior to 1986.  The Veteran contends that without medication his blood pressure readings would be much higher and would contemplate a compensable rating.  Surely, the fact that the Veteran has been on medication for his hypertension for over 25 years indicates that his disease is of some significance.  Affording the Veteran all reasonable doubt, the Veteran the Board finds that assignment of the minimal 10 percent disability rating is warranted.

Turning to the next higher rating criteria, the Board notes that the evidence of record clearly indicates that the Veteran does not have diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more.  The Board thus finds that a rating in excess of 10 percent for the Veteran's hypertension is not warranted.  Whether the Veteran's hypertension would reach such readings without medication is irrelevant concerning the proper application of the rating criteria.  Such an assertion is speculative in any case as the Veteran's hypertension has been well-controlled by medication for nearly three decades.  Moreover, the 10 percent disability rating assigned herein adequately and appropriately compensates the Veteran as intended by the rating criteria, which contemplates consideration of the use of medication.

The above determination is based upon consideration of applicable rating provisions.  It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b) (1).  In this case, there has been no showing that the Veteran's disability picture for his hypertension could not be contemplated adequately by the applicable schedular rating criteria discussed above.  The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal.  Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's hypertension picture includes such exceptional factors as periods of hospitalization and interference with employment.  Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

In light of the foregoing, the Board finds that a separate compensable rating for the Veteran's hypertension is not warranted.  As such, the preponderance of the evidence is against the Veteran's claim.  Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Veteran's claim for a separate rating for hypertension must therefore be denied.


ORDER

Service connection for bilateral hearing loss is granted.

Entitlement to a separate 10 percent disability rating for hypertension is granted.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs