Citation Nr: 1513430 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 12-30 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a right shoulder disability. 5. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. Hypertension did not have its onset in service and is not otherwise related to active military service; hypertension was not manifested within the first post-service year. 2. The Veteran does not experience hearing loss that is the result of a disease or injury in service; sensorineural hearing loss was not manifested within the first post-service year. 3. Tinnitus did not manifest during military service or until years thereafter, and is not otherwise attributable to the Veteran's military service. 4. The Veteran does not have a diagnosed right shoulder disability or a back disability. CONCLUSIONS OF LAW 1. The Veteran does not have hypertension that is the result of disease or injury incurred in or aggravated by active military service, and hypertension may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). 2. The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service, and sensorineural hearing loss may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2014). 3. The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated by active military service, and tinnitus may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014). 4. The Veteran does not have a right shoulder disability or a back disability that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Upon receiving the Veteran's claims of service connection, the RO sent to him a letter dated in June 2010 wherein he was notified of the evidence required to substantiate those claims. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran on the types of evidence he could submit that would support his claims for service connection, such as treatment records related to the claimed conditions and statements from persons who knew of any disabilities that he may have had in service. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the June 2010 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a) and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Thus, the Board concludes that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board finds that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the Veteran's claims has been obtained. The evidence of record contains the Veteran's available service treatment records (STRs), available private treatment records, VA examination report and medical opinion, and lay statements. The Board is unaware of any outstanding evidence or information that has not already been requested. In that regard, the Veteran asked the RO to retrieve all available VA treatment records from Mountain VA Medical Center (VAMC) dated from 1975 to 1977. In June 2010, an attempt was made to retrieve any available records. However, in September 2010, a response by VA indicated that there were no records available for the dates requested. In his March 2011 Notice of Disagreement (NOD), the Veteran requested that VA again attempt to retrieve such records, but the Board finds that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice; and that all available evidence pertaining to the Veteran's claims has been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the Veteran has not been afforded a medical examination with a medical opinion addressing his claims for a right shoulder disability, back disability, or hypertension. However, the Board finds that a VA examination is not necessary with respect to those claims. A medical examination or medical opinion may be deemed necessary where the record contains competent evidence of a current disability or persistent or recurrent symptoms of a disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. McLendon, 20 Vet. App. at 83. Here, as the claims file contains no competent evidence of a current right shoulder or back disability, or persistent or recurrent symptoms of disability, an examination is not necessary to satisfy VA's duty to assist. Regarding the Veteran's claim for hypertension, as there is no evidence of in-service event, injury or disease, nor an indication that the Veteran's hypertension is associated with any in-service event, an examination is not necessary to satisfy VA's duty to assist. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to the claim decided herein. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If a chronic disorder, such as sensorineural hearing loss, tinnitus or hypertension, is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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 service, 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). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). 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 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hypertension The Veteran contends that he is entitled to service connection for hypertension. However, as will be discussed below, the evidence does not indicate that hypertension began during service or is otherwise related to the Veteran's period of military service. The Board notes that the hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2014). Service treatment records fail to reflect a diagnosis of hypertension or chronic elevated blood pressure readings. There were no systolic blood pressure readings of 160 mm or greater and only one recorded diastolic blood pressure reading of 90 mm (or greater) as noted in a May 1972 Report of Medical Examination for reenlistment. The May 1976 separation examination reflected a blood pressure reading of 122/74. In sum, the Veteran did not have a diagnosis of hypertension during service and the objective findings did not suggest that he had the chronic disease. After service, VA treatment records confirm that the Veteran has been diagnosed with hypertension. The earliest evidence of record mentioning hypertension is a private treatment record dated in February 2006, noting that the Veteran presented for treatment for hypertension. Subsequent records reflect continued treatment for hypertension. However, none of these records suggests any relationship between the Veteran's hypertension and active military service. The Board finds that the evidence does not show that hypertension manifested during, or as a result of, active military service. The Veteran's STRs do not reflect sustained elevated blood pressure readings. DC 7101. Additionally, there were no systolic blood pressure readings of 160 mm or greater. Most importantly, service records do not reflect a diagnosis of hypertension or chronic elevated blood pressure readings. Indeed, at separation from service, the reading was normal. Id. As such, there is no evidence of hypertension during military service. Post-service treatment records also fail to relate the Veteran's hypertension to military service. The first evidence of record diagnosing hypertension is from 2006--approximately 30 years after the Veteran's separation from active duty. See 38 C.F.R. §§ 3.307, 3.309. Neither this record, nor subsequent records, suggests that the Veteran's hypertension was related to military service or that it had existed prior. Moreover, the record contains no evidence to suggest that the Veteran has the requisite training to offer such a complex medical opinion. See Routen, 10 Vet. App. at 186; see also Bostain, 11 Vet. App. at 127 (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). As such, the preponderance of the evidence is against the claim. As hypertension is a chronic disease under 38 C.F.R. § 3.309(a), service connection could be awarded even in the absence of a positive nexus, if the evidence of record demonstrates continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, however, there is no showing of continuity of symptomatology. Indeed, there is no showing of hypertension in the post-service record until 2006. Moreover, the Veteran has not expressly asserted a continuity of symptomatology in this case. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not helpful to the claimant in this instance. The Veteran's claim of entitlement to service connection for hypertension is denied. Hearing Loss The Veteran seeks service connection for hearing loss. The Veteran contends that exposure to gunfire and artillery during training caused his condition. He has denied the use of hearing protection devices and any occupational and recreational noise exposure. After review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim. Under 38 C.F.R. § 3.385, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a veteran's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a veteran from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a veteran who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110, 1131; C.F.R. §§ 3.303, 3.304; Hensley, 5 Vet. App. at 159-60. STRs showed normal hearing upon entrance examination in January 1969 and upon separation examination in May 1976. An October 1971 STR also shows that the Veteran was issued ear plugs. An August 2010 VA audiometric examination revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 40 40 LEFT 35 35 40 40 50 The Veteran was diagnosed with bilateral mild sensorineural hearing loss. Although the Veteran's auditory threshold for his left and right ears meet the criteria for establishing that he has hearing impairment, the VA audiologist opined that the etiology of hearing loss was less likely than not caused by or a result of military noise exposure. The examiner reasoned that the Veteran reported an onset of hearing loss 10 years earlier, and pointed out that this was approximately 30 years after separation from military service. The examiner also noted that the Veteran's separation audiogram showed normal hearing bilaterally with no significant threshold shifts. The examiner further supported his rationale stating that the Institute of Medicine (IOM) showed no scientific evidence to support delayed-onset noise-induced hearing loss. As such, the examiner deemed it less likely as not that the current hearing loss was related to the Veteran's military noise exposure. The Board acknowledges the Veteran's assertions that he was exposed to loud noises in service, which he claims caused his hearing loss. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); also see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Relating noise exposure in service, however, to a current hearing loss disability, especially with a lengthy gap in the medical record, requires opinion evidence from experts with medical training, and is not subject to lay assessment. The Board finds the opinion of the VA examiner to be more persuasive than the Veteran's lay assertions, especially in light of the October 1971 STR showing that he was issued ear plugs during service, the separation examination, and the Veteran's statement regarding time of onset. Accordingly, the Board does not find credible the allegation implicit in the Veteran's claim that his hearing loss has been present since active service and further finds that the competent medical evidence weighs against a relationship between the Veteran's hearing loss and his period of active service, to include in-service noise exposure. The Veteran has not submitted any other competent or credible evidence to support his claim. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Tinnitus The Veteran is seeking service connection for tinnitus, which he contends is related to noise exposure during active service. However, after review of the record, the Board finds that the preponderance of the evidence is against this claim. The Veteran's STRs are silent for complaints of tinnitus. An October 1971 STR shows that the Veteran was issued ear plugs. During the August 2010 VA audiometric examination, the Veteran reported an onset of unilateral right-sided periodic tinnitus (occurring two to three times per month and lasting for hours during episodes) approximately five years earlier. He further stated that his tinnitus was not constant and was instead recurrent or intermittent. The Veteran was diagnosed with bilateral subjective tinnitus. The VA examiner opined that the etiology of the Veteran's tinnitus was less likely than not caused by or related to military noise exposure. The examiner explained that there is no objective test for the presence of tinnitus, the Veteran reported an onset of tinnitus only five years earlier, and the IOM showed no scientific evidence to support delayed-onset tinnitus. Thus, the examiner deemed it less likely as not that the current tinnitus is related to his military noise exposure. The Board accepts that the Veteran was exposed to noise in service. However, the available STRs are negative for any complaints and findings of tinnitus. Furthermore, there is evidence that the Veteran was issued ear plugs during service. The separation examination report, prepared in May 1976, showed that the Veteran's ears were also normal. Significantly, there is no reliable evidence indicating that there is a relationship between the Veteran's current tinnitus and military noise exposure. The first documentation of tinnitus is dated in the August 2010 VA examination report, over 30 years after the Veteran's service separation. Indeed, the Veteran reported that his tinnitus did not begin until approximately 2005, which would have been nearly 30 years after discharge. The Board must note the lapse of many years between his separation from service and the first indication of complaints of tinnitus. (The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000).) Following the VA examination in August 2010, the VA audiologist specifically stated that the Veteran's tinnitus was less likely than not a result of noise exposure sustained while in the military. This opinion is unrefuted by the remaining medical evidence. Indeed, the evidence, particularly the time of onset as reported by the Veteran, is consistent with the examiner's opinion. Accordingly, the Board does not find it credible that the Veteran's tinnitus has been present since active service and further finds that the competent medical evidence weighs against a relationship between the Veteran's tinnitus and his period of active service, to include in-service noise exposure. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, service connection for tinnitus is denied. Right Shoulder Disability and Back Disability Initially, the Board acknowledges that the Veteran is competent to describe symptoms he experiences related to his claimed disabilities such as right shoulder pain and back pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As a lay person, however, the Veteran is not competent to provide a medical diagnosis regarding a right shoulder or back disorder as such matters require medical testing and expertise. See Jandreau. Thus, the Board accords significantly greater probative value to the medical evidence of record than to the lay assertions of the Veteran on these points. In this case, the Board finds that service connection for a right shoulder disability and a back disability is not warranted because there is no competent evidence of an underlying current disability. STRs are silent for complaints of or treatment for any right shoulder or back problem. Post-service treatment records show complaints of low back pain and right shoulder pain, but no diagnoses of an underlying disability. As mentioned, the Federal Circuit has noted that in order for a veteran to qualify for entitlement to compensation, the Veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). The requirement that a current disability be present is 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 the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the evidence does not indicate a diagnosis of any of the claimed disabilities at any time, even prior to the filing of the Veteran's claim. Despite the Veteran's subjective complaints of right shoulder pain and back pain made during the course of seeking treatment, clinical and radiological evaluations failed to reveal objective indications of any underlying disability. Therefore, the Board finds that service connection is not warranted for the claimed disabilities as there is no current diagnosis. Brammer, 3 Vet. App. at 225. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for service connection for a right shoulder disability and a back disability, that doctrine is not helpful to the claimant. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for hypertension, hearing loss, tinnitus, a right shoulder disability or a back disability is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs