Citation Nr: 1337727 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-34 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for lower back disability. 4. Entitlement to service connection for left knee disability. 5. Entitlement to service connection for right knee disability. 6. Entitlement to service connection for shoulder disability. 7. Entitlement to an increased initial rating for tinnitus, currently rated 10 percent disabling. 8. Entitlement to an initial compensable rating for bilateral hearing loss. 9. Entitlement to nonservice-connected pension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service from June 1973 to June 1976. This matter is before the Board of Veterans Appeals (Board) on appeal from a December 2009 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the Veteran requested the opportunity to testify at a Travel Board hearing. In March 2012, however, the Veteran stated that he wished to cancel his request for a hearing and to instead have his case forwarded to the Board. His hearing request is thus considered withdrawn. FINDINGS OF FACT 1. The Veteran's hypertension is not shown to be directly or presumptively related to active military service and continuity of symptomatology since service has not been demonstrated. 2. The Veteran did not suffer from headaches during his active service or for many years thereafter, and there is no indication the current headaches are related to his military service. 3. In March 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issues of entitlement to service connection for lower back disability, left knee disability, right knee disability, shoulder disability, an increased initial rating for tinnitus, an initial compensable rating for bilateral hearing loss, and entitlement to nonservice-connected pension. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service and may not be presumed to have been incurred as a result of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 2. Headaches were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 3. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issues of entitlement to service connection for lower back disability, left knee disability, right knee disability, shoulder disability, an increased initial rating for tinnitus, an initial compensable rating for bilateral hearing loss, and entitlement to nonservice-connected pension. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, VA has satisfied its duty to notify the Veteran pursuant to a July 2009 letter. Relevant to the duty to assist, the Veteran's service treatment records, as well as all post-service treatment records identified by the Veteran and the record have been obtained and considered. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. The Board notes that the Veteran did not undergo VA examinations regarding the claims concerning hypertension and headaches, because no evidence indicates a link between these disabilities and service. Based on the foregoing, it is the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim on appeal. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. Legal Criteria 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. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection for hypertension may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year following the Veteran's date of discharge from active service. 38 U.S.C.A. § 1110, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Note (1) of 38 C.F.R. § 4.104, Diagnostic Code 7101 states that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background & Analysis Hypertension After carefully reviewing the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against the grant of service connection for hypertension. The Veteran's service treatment records do not reflect any occasion where he was considered to have hypertension, or that hypertension was suspected. Additionally, the Board notes that neither elevated blood pressure readings nor a diagnosis of hypertension is shown by the evidence of record during the Veteran's first post-service year or for many years thereafter. To the contrary, elevated blood pressure readings and the first actual diagnosis of hypertension reflected in the record was rendered in September 2008 and confirmed in November 2008 in private treatment records. None of these records reflect the view by any medical professional that the Veteran's hypertension was related to service. In evaluating this claim, the Board finds probative that the Veteran was not diagnosed to have hypertension during service and that chronically elevated blood pressure readings are not shown during service. Further probative evidence against the claim is that the first post-service elevated blood pressure readings and diagnosis of hypertension were in 2008, more than 32 years after the Veteran's discharge from service. Any contention by the Veteran that he has had high blood pressure ever since service is not credible, because it is contradicted by his service treatment records. (Contemporaneous records of his actual medical care are more probative than a statement of medical history given decades later, and in the context of a claim for monetary benefits.) Indeed, he indicated in a 1976 report of medical history that he did not have high blood pressure. Likewise, the Veteran is not shown to be competent to offer any conclusions that his current hypertension is related to some disease or injury in service. No other evidence suggests such a link. Under these circumstances, the greater weight of the evidence is against the Veteran's claim. Headaches After carefully reviewing the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against the grant of service connection for headaches. The Veteran's Report of Medical History dated in April 1973 for enlistment purposes reflects that the Veteran complained of frequent or severe headaches. His April 1973 enlistment examination and March 1976 separation examination listed his head, face, neck, and scalp as normal. A Report of Medical History dated in November 1976 reflects that the Veteran checked the 'no' box for frequent or severe headache. There are no other service treatment records related to headaches. This is strong evidence that as of November 1976, there were no headaches. Private treatment records from Comanche County Memorial Hospital dated in February 2009 reflect that the Veteran was assessed with headaches, but these records do not indicate it was thought to be related to service. With the onset of the claimed condition decades after service, and no competent evidence linking it to service, a basis upon which to establish service connection has not been presented. In this regard, it is noted that the Veteran alleges that his headaches are attributable to his military service. This contention, however, is beyond his competency, as there is nothing in the record reflecting he possesses the medical expertise to establish the relationship he is asserting. Accordingly, the contention does not provide a basis for the award of the benefit. Moreover, the Veteran's contentions as to headaches have been inconsistent. Although he reports having headaches since service, he denied frequent or severe headaches in November 1976. In short, his account of having headaches since service is inconsistent with the contemporaneous records. Thus, such contentions are not credible. The competent, credible, and probative evidence of record weighs against the grant of service connection for headaches. Because the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert, supra. Lower Back, Left Knee, Right Knee, Shoulder, Tinnitus, Bilateral Hearing Loss, and Nonservice-connected Pension Issues Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. In a March 2012 statement, the Veteran indicated that he wished to withdraw his appeal of service connection for lower back disability, left knee disability, right knee disability, shoulder disability, an increased initial rating for tinnitus, an initial compensable rating for bilateral hearing loss, and entitlement to nonservice-connected pension. Accordingly, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues, and the Board does not have jurisdiction to review the appeal of them. Therefore, the issues of entitlement to service connection for lower back disability, left knee disability, right knee disability, shoulder disability, an increased initial rating for tinnitus, an initial compensable rating for bilateral hearing loss, and entitlement to nonservice-connected pension are dismissed. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for headaches is denied. The appeal of entitlement to service connection for lower back disability, left knee disability, right knee disability, shoulder disability, an increased initial rating for tinnitus, an initial compensable rating for bilateral hearing loss, and entitlement to nonservice-connected pension is dismissed. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs