Citation Nr: 1340832 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-11 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from September 1961 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The claim was remanded in March 2012 for evidentiary development. The Veteran's entire claims folder, to include the portion contained in the electronic "Virtual VA" system, was reviewed in this case. The Veteran appeared at a Travel Board hearing in May 2011. A transcript is associated with the claims file. The claim for entitlement to service connection for hypertension is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran has a current bilateral hearing loss disability; the evidence indicates that the disability manifested many years after separation from service, and is not causally related to service. CONCLUSION OF LAW Service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duty to Notify and Assist In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), Veterans Claims Assistance Act of 2000 (VCAA) notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) and, inform the claimant about the information and evidence the claimant is expected to provide. Although no longer required, in this case it was requested that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Additionally, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) mandate notification of 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. This notice must also inform the Veteran on how VA determines that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Id. In this case, the Veteran was informed about the information and evidence not of record that is necessary to substantiate his claim for service connection. In addition, the Veteran received notice regarding the evidence and information needed to establish a disability rating and effective dates, as outlined in Dingess-Hartman. It is pertinent to note that the Veteran is represented by the Veterans of Foreign Wars of the United States (VFW), and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records. The Veteran was afforded several VA examinations which address his contentions, and the most recent opinion is adequate to resolve the contended issue. There is no indication of any additional relevant evidence that has not been obtained, and here is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2013). Legal Criteria-Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established under 38 C.F.R. § 3.303(b), if a "chronic disease or injury" is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has been diagnosed with a bilateral hearing loss disability. "Other organic diseases of the nervous system" (which would include bilateral hearing loss) are listed as an example of a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including other organic diseases of the nervous system such as hearing loss, based upon a legal presumption showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Additionally, service connection for impaired hearing is subject to the requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or, if the thresholds for at least three of the frequencies are greater than 25 decibels; or, speech recognition scores using the Maryland CNC Test are less than 94 percent. See Hensley v. Brown, 5 Vet. App. 155 (1993). Analysis The Veteran contends that he developed a bilateral hearing loss disability as a result of his active service in the Marine Corps. Specifically, he attributes his hearing loss to noise exposure, including small arms, artillery, and aircraft ordnance explosions. He states that he had some occupational noise exposure following his separation while working for the Maytag Corporation; however, he also asserts that he had adequate hearing protection during his post-service career, and that this was not present while he was in military service. He does not contend, and the record does not reflect, that the Veteran has continually experienced a hearing loss disability (or symptoms of hearing loss) since service, and he does not assert that such disorder was diagnosed within the first post-service year. The Veteran served between 1961 and 1966, and his in-service audiometric findings during active duty were conducted under testing criteria consistent with the American Standards Association (ASA) model. That is, the standards in place for military testing prior to revision in 1967. With conversion of those results to those utilized by the American National Standards Institute (ANSI) or International Standards Organization (ISO), it is noted that there is no evidence of a hearing loss disability within the meaning of 38 C.F.R. § 3.385 in service or within the first post-service year. Further, the Veteran did not report any hearing loss symptomatology until many years after separation from active duty. Nonetheless, it is conceded that the Veteran would, as a Marine serving in support of infantry operations, have some in-service noise exposure that could, at least potentially, be related to a current hearing loss disability. In October 2009, the Veteran was afforded a VA examination, and at that time, the examiner assessed a current hearing disability for VA purposes. It was further noted that the service treatment records contained whisper test results, and that, in the examiner's opinion, such results were not adequate to assess hearing loss. From that, the examiner noted that the Veteran was a credible historian regarding his in-service noise exposure, and concluded that it was at least as likely as not that a current hearing loss disability had causal origins in service. The RO, however, noted that it was not readily apparent that the examiner reviewed the entire claims folder. Specifically, the RO noted that hearing acuity was apparently documented to be within normal limits in August 1972, and that clarification was needed on the examiner's opinion. In an addendum report, also dated in October 2009, the examining audiologist noted that her initial impression was incorrect, and that based on "normal hearing acuity" documented in "1972, 1973, and 1974," it was not likely that a current hearing loss disability had causal origins in service. The Veteran was granted service connection for tinnitus in a March 2010 rating decision authored subsequent to this action. The Veteran's representative has argued that the tinnitus is a symptom of a bilateral hearing loss disability, and that it substantiates the Veteran's assertion of being exposed to loud noises on active duty. While service-connected tinnitus may be attributable, in some degree, to a current hearing loss disability, such a fact is irrelevant in establishing service connection for hearing loss (i.e. it is irrelevant if a nonservice-connected disability causes or aggravates to some degree a service-connected disability). Regarding the Veteran's in-service noise exposure, the Board, as noted above, fully concedes that such an exposure occurred. The Board, in its remand order of March 2012, directed that a new, comprehensive VA audiological examination be afforded addressing the etiology of the current hearing loss with a more sufficient rationale than what was provided in 2009. In a May 2012 opinion, a VA audiologist noted that the Veteran did have both significant in-service and post-service noise exposure, and confirmed that a bilateral hearing loss disability was present. With respect to etiology, however, the examiner explained that "exposure to impulse sounds or continuous exposure can cause temporary threshold shift, which usually abates within 16 to 48 hours after exposure." It was also noted that "impulse noise may also result in immediate and permanent hearing loss." However, the examiner went on to state that "since the damage from noise exposure occurs at the time of the exposure, a normal audiogram subsequent to the noise exposure would verify that hearing recovered without a permanent hearing loss." Based on the assessment of the Veteran's in-service hearing audiograms as within normal limits, it was concluded that "it is not at least as likely as not that today's hearing loss is related to military noise exposure." This opinion fully considered the Veteran's contentions, and the examiner also noted the October 2009 initially favorable, and later unfavorable, assessment. The examiner provided a detailed and concise rationale, explaining that the documentation of normal hearing in service, and indeed for several years after service, indicated that there was no hearing loss attributable to the conceded acoustic trauma. Specifically, by noting that acoustic trauma's affect on hearing acuity is immediate, and that any impulse noise-caused hearing loss would be demonstrated at the time of exposure (i.e. in an in-service audiogram), the examiner fully explained her conclusion as to why it is less likely as not that the Veteran's current hearing loss disability had causal origins in service. The opinion, being well-rationalized, is probative evidence against the Veteran's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran, as a layperson, is competent to report on that which comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In this regard, he is competent to describe the noting of hearing acuity changes as he has perceived them. He is not, however, competent to address something complex in nature like the etiology of a bilateral hearing loss disability as due to noise exposure. Indeed, such an assessment would require advanced medical knowledge, which the Veteran does not possess. Id. Accordingly, while his statements alleging an etiological relationship are noted, they cannot be assigned any significant probative weight. Essentially, the competent evidence of record is uniformly against the Veteran's contentions, and as noted, this evidence is well-rationalized and probative. While the Board does not doubt the Veteran's credibility in positing his claim, the only evidence supportive of a causal relationship between service and current hearing loss comes from the Veteran's own unsubstantiated lay assertions, which are of minimal probative value. Thus, the Veteran's contentions are not supported by the record, and the claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for service connection. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. REMAND With respect to the Veteran's claim that hypertension had causal origins in active service, it is noted that the Board, in its March 2012 remand order, noted that there was a finding of a blood pressure reading of 130/80 and 140/90 at service separation in 1966. Both of these findings, while not constituting hypertension for VA purposes, were noted by the Board to be elevated when compared to a single entrance blood pressure reading of 130/70. It was asked that a comprehensive VA examination be afforded addressing whether it was at least as likely as not that current hypertension had a causal origin in service. An examination was afforded in May 2012, and an associated report is of record. At that time, it was noted that the Veteran first had documented hypertensive readings in 1979, which was several years after service separation. Indeed, the Veteran had readings of 186/90 and 180/90 at that time, and he was put on medication to control the condition. It was noted by the examiner that the Veteran checks his blood pressure at home, and with medication, stated that he averages 130/70. The findings at the time of the examination were 194/93, 177/100, and 179/85. The Veteran stated that he is nervous in the doctor's office, and that this causes his blood pressure to be higher in those settings than at home. Regardless, the examiner did confirm that hypertension was currently present. With respect to etiology, however, the VA examiner simply noted that the in-service documented blood pressure readings did not arise to hypertension, and that as such, there was no linkage between current hypertension and service. Specifically, the examiner stated that "a diagnosis of hypertension is made with serial readings of blood pressure above 140/90. There is no evidence of this during military service." Here, the Board must note that the afforded rationale is inadequate to resolve the issue on appeal. Specifically, the examiner's rationale consists, essentially, of a finding of a lack of a relationship as due to a lack of documentation of elevated blood pressure readings in the service treatment records. The examiner did not address the increase in blood pressure, however isolated, from service entrance to separation, and he did not explain why, in his view, documented hypertension, present since the late 1970s, could not have had a causal origin in service. Indeed, the examiner noted that the service treatment records did not consist of serial blood pressure readings, then simply concluded that such a lack of documentation equated to it being less likely as not that current primary hypertension had causal origin in service. The U.S. Court of Appeals for Veterans Claims has stated that the mere fact that a diagnosis was not confirmed in contemporaneous treatment records is not, in itself, a sufficient basis on which to base a medical opinion. That is, it does not constitute an adequate rationale for resolving the issue on appeal. See Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Implicit in the Board's March 2012 remand order, was that the requested medical examination report be adequate. As this is not the case, the Board's directive was not complied with in its entirety, and remedial action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the case should be returned to an examiner other than the one who conducted the May 2012 examination, and an opinion as to if it is at least as likely as not that the Veteran's hypertension had causal origins in service should be provided with an adequate rationale (i.e. the mere lack of documentation of hypertension in service should not, in itself, be the sole basis for an opinion). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. 2. Dispatch the claims file to a physician other than the one who conducted the May 2012 examination for the purposes of obtaining an addendum opinion. In this regard, it is asked that an examiner review the claims file, to include the blood pressure readings done at service entry and separation, and opine as to if it is at least as likely as not (50 percent probability or greater) that current hypertension had causal origins in service. In this regard, the examiner is reminded that the mere lack of documentation in the service treatment records is not, in itself, a sufficient basis for which to base an opinion, and that a rationale explaining any conclusions must be associated with the addendum opinion. 3. Following the directed development, the RO must conduct a de novo review of the claim for service connection on the merits. Should the claim be denied, issue an appropriate statement of the case to the Veteran and his representative and return the claim to the Board for final adjudication. 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 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs