Citation Nr: 1343239 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 13-00 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for residuals of frostbite of the lower extremities. 2. Entitlement to service connection for hypertension. 3. Entitlement to a rating higher than 30 percent for bilateral hearing loss beginning on March 29, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from February 1958 to February 1960. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claim of entitlement to a rating higher than 30 percent for bilateral hearing loss requires further development before being decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. Whereas the Board, instead, is going ahead and deciding the remaining claims of entitlement to service connection for residuals of frostbite of the lower extremities and for hypertension. FINDINGS OF FACT 1. There is competent, credible, and therefore probative evidence the Veteran's bilateral lower extremity peripheral neuropathy is the result of cold injury he sustained during his service. 2. But there is no competent, credible, and thus probative evidence indicating his hypertension incepted during his service or manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of his discharge from service, or that it is otherwise related or attributable to his service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the Veteran's bilateral lower extremity peripheral neuropathy is due to cold injury incurred during his service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. His hypertension, however, was not incurred in or aggravated by his service and may not be presumed to have been. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 being: (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. Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006). By way of August 2010 and February 2011 letters, the Veteran has received all essential notice and has had a meaningful opportunity to participate effectively in the development of his claims; he is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). As for the duty to assist, all obtainable records, including service treatment records (STRs) and post-service medical records, have been obtained and the Veteran was afforded a VA cold injury examination that is adequate to decide his claim for consequent residuals. Also keep in mind the Board is granting, rather than denying, this claim, so even had there not been this assistance it would only amount to at most nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Arrangements were not made to schedule him for a VA examination to help determine the etiology of his hypertension because no opinion is necessary to decide this other claim. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). While he had an elevated blood pressure reading on his induction examination, a second reading was lower, and there was no finding or diagnosis of hypertension during his service - which means persistently elevated blood pressure. Moreover, there equally was no evidence of hypertension even for many years after the conclusion of his service. Although "medically competent" evidence is not required to indicate a current disability may be related to service, a conclusory generalized lay statement suggesting a nexus between a current disability and service does not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all Veterans claiming entitlement to service connection, so merely as a matter of course rather than as meeting the specific and craftily tailored requirements for when an examination and opinion are required. See Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); see also Duenas v. Principi, 18 Vet. App. 512, 519 (2004). Therefore, the Veteran's mere belief, alone, is insufficient to trigger the need to obtain an opinion. The Board therefore finds that the duty to assist has been met concerning these claims being decided. 38 U.S.C.A. § 5103A (West 2002). Legal Criteria and Analysis Service connection is granted if it is shown the Veteran has disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent and credible evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). But having said that, service connection may be granted for any disease diagnosed after discharge from service when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A Peripheral Neuropathy of the Lower Extremities as a Residual of Cold Injury The Veteran contends that his bilateral lower extremity peripheral neuropathy is the result of frostbite due to exposure to subzero temperature while serving in Korea. His service personnel records (SPRs) show he served in Korea for approximately 1 year, and while there are no STRs showing treatment for frostbite, he provided the January 2011 VA examiner with a history of getting his feet wet during exercises in subzero temperatures and being treated. He also reported his subsequent symptoms. Based on consideration of his statements and recounted history, examination findings, and independent review of the claims file, the examiner concluded the peripheral neuropathy affecting the Veteran's feet was most likely caused by or the result of cold injury, presumably referring to the weather trauma in service while stationed in Korea. The examiner's explanatory rationale, based on his current medical knowledge and experience, was that there is documented evidence of peripheral neuropathy in both feet, the Veteran presented a classic case for cold injury, and there is no other likely etiology. The Board finds the Veteran's statements to be competent, credible and therefore ultimately probative regarding cold injury in service. The medical nexus opinion is also found to be probative because it at least partly relied on this credible lay history for etiologically linking the current peripheral neuropathy to the cold injury in service. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran). Indeed, as the Court made clear in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility. Certainly then, when resolving all reasonable doubt in the Veteran's favor, it is just as likely as not the bilateral peripheral neuropathy affecting his feet is the result of the type of injury claimed during his service, in turn requiring the granting of service connection for this consequent disability. B. Hypertension The Veteran accepts that he had hypertension when entering service, but contends that his service aggravated it - meaning made it chronically worse. Aside from his lay statements, however, there is no evidence his hypertension pre-existed his service. For purposes of establishing entitlement to service connection, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls on the government (meaning VA) to demonstrate by clear and unmistakable evidence both that (a) the condition preexisted service and (b) that it was not aggravated by service. Wagner v. Principi, 370 F3d. 1089 (Fed. Cir. 2004); Horn v. Shiniseki, 25 Vet. App. 231, 234 (2012). See also VAOPGCPREC 3-03 (July 16, 2003). Here, the condition of hypertension was not noted upon entry into service. Although the Veteran points to the one blood pressure reading of 160/100 as evidence of having had hypertension when he entered service, a second blood pressure reading on induction was lower and no relevant disability or diagnosis was noted in the report of the entrance examination. Accordingly, the presumption of soundness when entering service applies since there is not the required clear and unmistakable evidence to rebut this presumption. The assertion in the Veteran's May 2011 notice of disagreement (NOD) that his hypertension pre-existed his service was based on his blood pressure readings in service; however, he was not noted to have hypertension on induction examination and he also denied having a history of high blood pressure when recounting his relevant medical history. He also asserted his blood pressure worsened and that not all readings were documented in service. He concluded, the absence of aggravation cannot be based on just one blood pressure reading. He is competent to report firsthand knowledge of whether he had other blood pressure readings in service. See Washington v. Nicholson, 19 Vet. App. 363 (2005) (A Veteran is competent to report what occurred in service because testimony regarding firsthand knowledge of a factual matter is competent). But his statements are not found to be credible and, as a result, they lack probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). His service records contain four blood pressure readings and none are shown to be as high as the initial reading taken during his induction examination. To the contrary, the second reading taken on induction was lower as were the readings taken in April 1958 and during his separation examination. If anything is to be gleaned from these recordings, these additional readings reflect an improvement rather than a worsening of his blood pressure while in service. The Board also finds it unlikely medical providers during service would not document other high blood pressure readings, particularly if they were suggestive of persistently elevated blood pressure, i.e., hypertension. Also significant is that there is no diagnosis or history of hypertension noted anywhere in the STRs. This evidence is highly probative and against the claim. For these reasons, the presumption of soundness is not rebutted. In addition to there being no evidence hypertension predated or had its onset in service, there is no basis for granting service connection of a presumptive basis, either. Certain diseases are considered chronic, per se, including hypertension, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When a chronic disease is at issue, such as hypertension or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology since service. Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The Veteran only identified VA medical providers as a source of treatment, but these records only date back to 2004. And while they contain a diagnosis of hypertension - confirming he has it - there is no indication the initial diagnosis was made within the first year following his separation from service, meaning by February 1961. There certainly is not the required indication he had hypertension to the required minimum compensable degree of at least 10-percent disabling within one year of the conclusion of his service. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. Since there is no evidence of a hypertension diagnosis until many years after service the presumption of service connection as a chronic disease does not apply. Service connection for hypertension based on continuity of symptomatology also cannot be established since the condition was never noted in service and there is no evidence of its presence during the presumptive period or until many years after service. According to DC 7101, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. Id. So hypertension is determined by objective means, namely, blood pressure readings taken over a course of time, not instead merely by subjective lay opinion. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). There equally is no competent and credible evidence otherwise linking the Veteran's hypertension to his service. The only evidence he has offered to establish this required nexus or correlation is his own unsubstantiated lay opinion, which as explained does not rise to the level of being competent evidence, much less credible also to ultimately have probative value. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). Lay evidence is competent if it 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. Layno v. Brown, 6 Vet. App. 465 (1994). In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is incapable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regards to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007). Conversely, laypersons also have been found not to be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (claim concerned rheumatic fever or heart disease). Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), diagnosing and determining the etiology of hypertension falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay person not competent to diagnose cancer). Thus, given the Veteran's lack of medical expertise, his assertions that his hypertension is related to his service are beyond his competence. In the absence of evidence showing the Veteran had hypertension in service or to a compensable degree within the first post-service year, or competent evidence otherwise linking this condition to his service, the preponderance of the evidence is against his claim of entitlement to service connection and the benefit of the doubt rule does not apply, requiring the denial of his claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for peripheral neuropathy of the feet is granted. However, service connection for hypertension is denied. REMAND The Veteran has provided statements alleging his bilateral hearing loss has worsened, therefore an examination must be scheduled reassessing the severity of this service-connected disability. Accordingly, this remaining claim is REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain and associate with the Veteran's file all treatment records pertaining to his hearing loss disability since July 2011. 2. Upon receipt of all additional records, arrange for a VA compensation examination reassessing the severity of his bilateral hearing loss. Explain the consequences of him failing to report for this VA compensation examination. 38 C.F.R. § 3.655. Have the examiner perform all necessary diagnostic testing and evaluation, including testing the hearing acuity in the required frequencies of 1000, 2000, 3000 and 4000 Hertz, performing the necessary Maryland CNC speech recognition, and describing the functional effects of the hearing loss on the Veteran's occupation and daily activities. Concerning the latter, see Martinak v. Nicholson, 21 Vet. App. 447 (2007). 3. Then readjudicate this remaining claim in light of this and all other additional evidence. If a higher rating is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs