Citation Nr: 1338377	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  09-24 486	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for hypertensive vascular disease.


REPRESENTATION

Veteran represented by: The American Legion


ATTORNEY FOR THE BOARD

Rory Reyhan Layne, Associate Counsel




INTRODUCTION

The Veteran's active military service extended from May 1969 to December 1971.  These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO).


FINDINGS OF FACT

1.  The medical evidence does not show a current diagnosis of bilateral hearing loss for VA purposes.

2.  The preponderance of the evidence shows that the Veteran's hypertensive vascular disease (hypertension) did not manifest during active military service or within one year of discharge, and was not caused or aggravated by exposure to herbicides such as Agent Orange, or by any other disease, injury, or event during active service.


CONCLUSIONS OF LAW

1.  A bilateral hearing disability was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103A, 5107 (West 2002& Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).

2.  The criteria for service connection for hypertension have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  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).

The RO's March 2008 letter advised the Veteran of the elements of the notice requirements.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Accordingly the RO satisfied the notice requirements with respect to the issue on appeal.

As to VA's duty to assist, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran was provided with VA examinations which were thorough and adequate.  The medical examinations were adequate, as they were based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examinations of the Veteran.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Regarding the Veteran's hypertension claim, the Veteran's representative argues that the claim should be remanded to allow a VA examiner to consider a May 1978 hospital admission report showing a single blood pressure reading of 170/120 millimeters of mercury (mm Hg).  However, a single reading, taken while the Veteran is being admitted to a medical facility for treatment, is not enough to diagnose hypertension.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).  Moreover, as noted above and detailed below, the VA examiner elicited and considered the Veteran's statements regarding the history of his elevated blood pressure readings in the early 1980s and the initial diagnosis of hypertension.  In sum, a remand is not necessary to properly adjudicate the Veteran's claim.

Additionally, all available VA and private treatment records have been obtained and associated with the claims file.  The Veteran indicated that hypertension was diagnosed in 1972 and 1973 at different medical facilities.  However, the record reflects that the Veteran informed the VA on multiple occasions that the aforementioned medical files have been "destroyed."  The Veteran has also indicated, in an April 2008 statement, that relevant audiological testing reports, conducted by a past employer, are no longer available because "the factory moved." As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112, 120 (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 this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").

Legal Criteria for Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In addition, 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).

Service connection for certain chronic diseases, to include hypertension and sensorineural hearing loss, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a).  In such cases, these diseases are presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a). 

Bilateral Hearing Loss

The Veteran contends that he has bilateral hearing loss which is related to his active duty service.  Impaired hearing will be considered 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 speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

The Veteran's service treatment records are negative for any complaints of or treatment for bilateral hearing loss.  A March 1969 pre-induction examination report reflects that the Veteran's ears and eardrums were normal.  In a report of medical history, completed at that time, the Veteran denied a history of hearing loss.  An audiogram was performed, and revealed that the Veteran's hearing was within normal limits.  See 38 C.F.R. § 3.385.  On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ



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

In a December 1971 report of medical history, the Veteran denied a history of hearing loss or ear trouble.  An examination report, completed at that time, revealed that the Veteran's ears and eardrums were normal.  An audiological evaluation notes the same results as provided in the March 1969 evaluation above, except the puretone thresholds at 3000 Hertz were not recorded.

In 1998, the Veteran underwent a private audiogram.  The results are not of record; however, the Veteran has indicated that the results do not show the presence of hearing loss.  Specifically, in his December 2008 notice of disagreement, the Veteran stated, "I admit there was no actual evidence of hearing loss only a statement made by a [t]echnician that I had decrease[d] hearing from a previous exam."

At a VA examination in June 2008, the Veteran complained of hearing loss.  The Veteran noted noise exposure during service from helicopters, explosions, constant gunfire, rockets, mortars, and heavy equipment.  He indicated that as a civilian he worked as a machinist, worked at a factory, and occasionally hunted during a twenty year time period.  On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
15
20
LEFT
10
15
15
20
15

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear.  The examiner reported that the Veteran had normal hearing sensitivity in each ear.

The medical evidence of record does not reflect that the Veteran has a bilateral hearing impairment that is considered a disability for VA purposes and confirmed by audiological testing.  38 C.F.R. § 3.385.  Without a current disability, there can be no entitlement to compensation.  See McLain v. Nicholson, 21 Vet. App. 319  (2007)(holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication).

While the Veteran has provided lay statements that he currently has bilateral hearing loss due to service, as a layman his statements are not competent evidence of opinions on medical diagnosis and causation.  Jandreau v. Nicholson, 492, F.3d 1372, 1377 (Fed. Cir. 2007).  The lay statements are competent evidence that the Veteran currently has symptoms of hearing difficulty.  See Layno v. Brown, 6 Vet. App. 465 (1994).  However, they are not competent evidence to show that the Veteran has a current diagnosis of bilateral hearing loss that meets the requirements set forth in 38 C.F.R. § 3.385.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions).

Accordingly, as there is no competent evidence that the Veteran has bilateral hearing impairment, which is considered a disability for VA purposes, service connection for bilateral hearing loss is not warranted.  38 C.F.R. § 3.385.  Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as evidence does not show a current disability for VA purposes, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Hypertension

The Veteran argues that his hypertension is related to being exposed to herbicides, to include Agent Orange, during active service in Vietnam during the Vietnam War.  However, hypertension is not eligible for presumptive service connection based on herbicide exposure.  See 38 C.F.R. § 3.309(e) Note 3.  VA has determined that there is no positive association between exposure to herbicides and any other condition for which VA has not specifically determined that a presumption of service connection is warranted.  See 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996).  Specifically, in December 2010, VA determined that a presumption of service connection for hypertension based on herbicide exposure was not warranted.  75 Fed. Reg. 81332 (Dec. 27, 2010).  

Notwithstanding the foregoing presumptive provisions, the Veteran is not precluded from establishing service connection for hypertension under other presumptive provisions or with proof of direct causation.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). 

Under the pertinent regulations, hypertension means that the diastolic blood pressure is predominantly 90 mm Hg or greater, and isolated systolic hypertension means that the systolic blood is predominantly 160 mm Hg or greater with a diastolic blood pressure of less than 90 mm Hg. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).  Additionally, hypertension must be confirmed by readings taken two or more times on at least three different days.  Id.  A minimum compensable evaluation of 10 percent is assigned with diastolic pressure predominantly 100 mm Hg or more; or systolic pressure predominantly 160 mm Hg or more; or for an individual with a history of diastolic pressure predominantly 100 mm Hg or more who requires continuous medication for control.  38 C.F.R. § 4.104, Diagnostic Code 7101 (2013).

The Veteran served in the Army from May 1969 to December 1971.  His pre-induction and discharge report of medical examinations showed blood pressure readings of 134/86 mm Hg and 112/74 mm Hg, respectively.  No other readings were documented in service and hypertension was not diagnosed.

After separation from service, the Veteran alleges that hypertension was diagnosed in 1972 and in 1973.  However, in his December 2008 notice of disagreement, the Veteran clarifies that he did not return to either physician for the scheduled check-up.  The VA and the Veteran have also been unable to secure the private medical records associated with the 1972 and 1973 medical treatments.  Additionally, the Veteran has reported, in a June 2008 letter to the VA and his December 2008 notice of disagreement, that the above mentioned medical files had been "destroyed."

A May 1978 hospital admission report reflects a single blood pressure reading of 170/120 mm Hg.  No other blood pressure reading, or diagnosis of hypertension, is documented until a January 1990 private treatment record.  The report noted that the Veteran had stopped taking his blood pressure medication "several years ago," his blood pressure had been found elevated at a pre-employment screening, and his blood pressure during that visit was 180/110 mm Hg.  Subsequent blood pressure readings, recorded twice in the next seven days, were found to be elevated and hypertension was diagnosed.

A December 1997 private treatment note listed a diagnosis of essential hypertension, with an unknown etiology.  Additionally, the treatment note stated that the Veteran reported "a [history] of hypertension for 12 to 15 years."

The Veteran underwent a VA examination in June 2008.  The Veteran reported that he couldn't recall when his blood pressure was initially found to be elevated, but it was "probably . . . either in the early or late 1980's."  Additionally, in relating the circumstances of the initial diagnosis of hypertension by a private physician, the Veteran reported that he returned to the doctor's office to have his blood pressure rechecked, and his blood pressure was monitored for a month before being prescribed medication.  The VA examiner noted that the Veteran had a history of elevated blood pressure readings, and treatment had included various hypertension medications.  On physical examination, the blood pressure readings were 117/82 mm Hg, 114/80 mm Hg, and 121/82 mm Hg, with the Veteran on blood pressure medication.  

The examiner concluded that the Veteran's hypertension was not caused or related to his military service.  The examiner explained that the history of the illness, as reported by the Veteran, was consistent with the January 1990 private treatment record, thus showing that the Veteran's hypertension was diagnosed "in the early or late 1980's."  In sum, the examiner opined that hypertension diagnosed over ten years after service made it "unlikely to be caused by or related to service."

After reviewing the evidence of record, the Board finds that there is a current diagnosis of hypertension.  However, the Board finds that the evidence of record does not link the Veteran's current hypertension to his active duty service.  In reaching this conclusion, the Board has considered the Veteran's statements asserting continuity of symptomatology; specifically that hypertension was diagnosed by private physicians in 1972 and 1973.  

Here, the Veteran's statements are competent evidence to report any blood pressure readings observed, symptoms experienced, and medications prescribed, because these are capable of lay observation.  Layno, 6 Vet. App. at 469; see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  However, the Veteran's lay statements regarding the initial diagnosis of hypertension are not consistent throughout the record.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (noting that credibility may be impeached by a showing of inconsistent statements, consistency with other evidence).  

To that end, in the December 2008 notice of disagreement and February 2009 statement in support of claim, the Veteran asserts that hypertension was diagnosed in 1972 and 1973.  However, when the application for compensation was filed in March 2008, the Veteran reported that hypertension began in the "1980s."  This is consistent with the December 1997 private treatment record showing that the Veteran had "a [history] of hypertension for 12 to 15 years."  Moreover, the facts above are also consistent with the June 2008 VA examination.  Specifically, during the VA examination, the Veteran related to the examiner that hypertension was initially diagnosed "either in the early or late 1980's."  Based on the aforementioned evidence, the Board concludes that the Veteran's lay statements of record, to the extent they concern the initial diagnosis of hypertension in 1972 and 1973, are inconsistent and thus not credible.

As such, the evidence of record does not show that the Veteran's hypertension was manifested to a compensable degree within the year after active service.  Therefore, service connection for hypertension is not warranted on a chronic presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.

Additionally, the Board finds that the medical evidence does not relate the Veteran's hypertension to his military service.  The only competent opinion of record as to whether the Veteran's current hypertension is related to his active service is negative to his claim.  Specifically, the June 2008 VA examiner opined that the Veteran's hypertension was not related to his military service.  As such, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension.  In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for hypertension is denied.



______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs