Citation Nr: 1614404 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 06-05 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an effective date earlier than August 22, 2005 for the grant of service connection for hypertension. 3. Entitlement to an initial compensable rating for hypertension. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to an extraschedular rating. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Calvin D. Hansen, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2012, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) as to the issue of entitlement to a TDIU. A transcript of this hearing is associated with the claims file. The claims of entitlement to service connection for bilateral hearing loss and tinnitus were denied by the Board in a July 2008 decision. In a February 2010 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's July 2008 decision with respect to the aforementioned issues, and remanded the claims for readjudication consistent with the Court's memorandum decision. In November 2010, the Board remanded for additional development the Veteran's claims of entitlement to a TDIU and service connection for bilateral hearing loss, tinnitus, and a cardiovascular disability to include high blood pressure. In April 2015, the Board granted service connection for hypertension and again remanded the claims of entitlement to a TDIU and service connection for bilateral hearing loss and tinnitus for further development in compliance with the November 2010 remand directives. In a May 2015 rating decision, the RO implemented the grant of service connection for hypertension effective August 22, 2005, and assigned a noncompensable rating. The Veteran submitted a timely notice of disagreement with the effective date and initial rating assigned. The issues of entitlement to service connection for bilateral hearing loss and entitlement to an extraschedular rating and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's tinnitus had its onset in service. 2. The Veteran did not submit a claim, either formal or informal, for service connection for hypertension until August 22, 2005. 3. The Veteran's hypertension has been manifested by systolic pressure of 160 or more, but has not been manifested by systolic pressure predominantly 200 or more or diastolic pressure predominantly 110 or more. CONCLUSIONS OF LAW 1. The criteria to establish service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(b), 3.307(a), 3.309(a) (2015). 2. Entitlement to an effective date prior to August 22, 2005, for the grant of service connection for hypertension is not warranted. 38 U.S.C.A. §§ 5101, 5110, 7104 (West 2014); 38 C.F.R. §§ 3.1(p), 3.400 (2015). 3. The criteria for an initial rating of no more than 10 percent for hypertension have been met during the appeal period. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.104 Diagnostic Code 7101 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Tinnitus The Board finds that service connection for tinnitus is warranted. The Veteran has reported ongoing, recurrent tinnitus during the appeal period, and that his tinnitus began during his active duty service. See August 2005 Tinnitus Questionnaire. Additionally, the Veteran reported being exposed to extreme loud noises in service, including the noise of tanks and artillery. See id; see also August 2005 Private Audiology Evaluation; August 2005 Written Statement. Even though his service treatment records are silent for reports of tinnitus in service, the Veteran is competent to give reports concerning his noise exposure and the onset of his tinnitus in service, and the Board finds his reports to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, all three elements necessary to establish service connection have been met. See 38 C.F.R. §§ 3.303, 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board notes the negative nexus VA medical opinions of record; however, because the evidence is in equipoise on this issue, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b). II. Earlier Effective Date The Veteran seeks an earlier effective date for the grant of service connection for hypertension. The basic facts are not in dispute. The Veteran's initial application for service connection for hypertension was received by VA on August 22, 2005. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Here, the RO granted service connection effective the date the Veteran's original claim of service connection for hypertension was received by VA. An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Because the Veteran did not file a formal or informal application for service connection prior to August 22, 2005, VA is precluded, as a matter of law, from granting an effective date prior to that date for service connection for hypertension. As such, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law. Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). III. Higher Initial Rating The Veteran seeks an initial compensable rating for his service-connected hypertension. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). In this case, a rating of 10 percent, but no more, is warranted for hypertension during the appeal period because the evidence shows that the Veteran's blood pressure has involved systolic pressure predominately 160 or more, but not systolic pressure predominately 200 or more, or diastolic pressure predominantly 110 or more. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. The Board notes that the Veteran has been on continuous medication for his hypertension and exhibited the following blood pressures during the appeal period: 160/92 (December 20, 2010); 160/94 (January 5, 2012); 165/82 (September 20, 2013); 185/84 and 161/75 (January 24, 2013); and 183/74 (December 22, 2014). These pressures show systolic pressure predominately 160 or more during the appeal period. Thus, a 10 percent rating is warranted. The Board finds that a rating of 20 percent or higher is not warranted because the Veteran has not exhibited systolic pressures predominately 200 or more or diastolic pressures of 110 or more at any point during the appeal period. The Veteran's VA medical records show the following blood pressure readings: 143/88 (April 19, 2000); 143/88 (April 26, 2000); 139/94 (September 13, 2000); 131/81 (January 24, 2001); 131/81 (February 1, 2001); 139/79 (June 20, 2001); 144/92 (August 15, 2005); 140/60 (April 27, 2007); 139/88 (December 10, 2008); 152/82 and 138/78 (December 15, 2009); 146/89, 134/82 and 160/92 (December 20, 2010); 118/70 (January 5, 2011); 153/80 and 146/91 (January 23, 2011); 138/86, 140/88 and 160/94 (January 5, 2012); 122/82 (January 9, 2013); 165/82 (September 20, 2013); 122/82 and 138/86 (January 9, 2013) 185/84 and 161/75 (January 24, 2013); 153/84 and 138/80 (December 27, 2013); 150/78 and 183/74 (December 22, 2014); 140/88 (January 5, 2015). See VA Medical Records and Examination Reports; see also Private Medical Reports. During the Veteran's January 24, 2001 VA medical appointment, he reported that his blood pressure readings taken at home had been in the normal range. At December 2014 and June 2015 VA medical appointments, he reported that his systolic pressures were usually in the 130 to 150 range. He also reported during a June 2015 appointment that his diastolic pressure is usually in the 70s or 80s. The Veteran is competent to report the results of the blood pressure readings he took while at home and the Board finds his reports credible because they were made in connection with his obtaining medical treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Thus, as none of the blood pressure readings or lay evidence of record shows a systolic pressure of more than 185 or a diastolic pressure of more than 94, the criteria for a 20 percent rating have not been more nearly approximated. The Board notes that the Veteran has been on continuous medication for his hypertension for a number of years, resulting in lower blood pressure readings; however, the effects of his blood pressure medication are contemplated by DC 7101 in the rating schedule. See 38 C.F.R. § 4.104; see also Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Thus, a compensable rating for hypertension is not warranted at any point during the appeal period. With regard to the duties to notify and assist, because this matter involves an appeal of the initial disability rating assigned the claim is substantiated and no additional notice is required as to the "downstream" issue of entitlement to a higher initial rating. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With respect to the duty to assist, the Board notes that all available, pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been associated with the claims folder. 38 U.S.C.A. § 5103A (West 2014). The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Finally, the Board notes that the Veteran's January 2011 VA heart examination addressed his hypertension, and provided evidence regarding the severity of his hypertension. Moreover, the Veteran's history of symptoms and blood pressures are documented in his VA medical treatment records and lay statements in evidence. Thus, the Board finds that remand for a VA examination addressing this issue is unnecessary. ORDER Service connection for tinnitus is granted. An effective date earlier than August 22, 2005 for the grant of service connection for hypertension is denied. Subject to the law and regulations governing the payment of VA monetary benefits, an initial rating of no more than 10 percent for hypertension is granted. REMAND The Board finds that another remand is necessary prior to final adjudication of the Veteran's claims for service connection for bilateral hearing loss and entitlement to a TDIU. In an April 2015 remand, the Board directed that a VA audiological examination be obtained, and that key pieces of evidence be specifically addressed. Specifically, the VA examiner was to (1) review the audiometric findings dated in November 1966 and January 1967 and document the decibel of hearing in both ears at each frequency from 500 to 6000 Hertz in ASA units and following conversion to ISO (ANSI) units; (2) review the audiometric findings documented in report of October 1968 separation examination and comment as to whether it appears that an audiologic examination was performed and if so, whether reported audiometric findings are complete; (3) and state whether comparison of in-service audiometric findings is reflective of a shift in hearing thresholds at any frequency during service. See April 2015 Board Remand. The Veteran was provided a VA examination in 2015; however, the examiner did not complete the instructions list above. Therefore, remand is required to obtain an addendum opinion addressing these issues. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the Board notes that the Veteran's induction examination contains a notation that he had defective hearing and was ordered an H2 profile. Where a preexisting disease or injury is noted on the entrance examination, the issue to be determined is whether the preexisting injury is aggravated during service. "A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2015). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b) (2015). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As the Veteran was noted to have defective hearing at entry into service, the presumption of soundness does not apply and the issue for adjudication is whether the Veteran's hearing loss disorder was aggravated by service. Consequently, the VA examiner should provide an opinion as to whether the Veteran's hearing loss disorder increased beyond its natural progression during service. The Veteran's remaining claim of entitlement to a TDIU is inextricably intertwined with the remanded issue of service connection for bilateral hearing loss, and therefore should also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Moreover, any development affecting the TDIU issue may have an impact on the complete picture of the Veteran's service-connected disabilities and their effect on his employability as it pertains to extraschedular consideration. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Thus, the issue of entitlement to an extraschedular rating will also be remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records concerning the Veteran's treatment for hearing loss. 2. Notify the Veteran and his attorney that they may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms of hearing loss and tinnitus. He should be provided an appropriate amount of time for response. 3. After the above development has been completed to the extent possible, forward the claims file to an appropriate VA examiner to provide an addendum medical opinion concerning the nature and progression of the Veteran's noted hearing loss disability during service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination and the examination report should reflect that such review was made. The examiner is requested to review the Veteran's service treatment records (received October 27, 1969), to include the November 1966 reports of medical history and examination for induction with audiological findings and notation of defective hearing and a H2 physical profile; audiometric findings in graphical format dated November 16, 1966, and January 18, 1967; and October 1968 reports of medical history and examination for separation. As to the audiometric findings dated in November 1966 and January 1967, the examiner should document the decibel of hearing in both ears at each frequency from 500 to 6000 Hertz in ASA units and following conversion to ISO (ANSI) units. As to audiometric findings documented in report of October 1968 separation examination, the examiner should comment as to whether it appears that an audiologic examination was performed, and if so, whether reported audiometric findings are complete. The examiner should also state whether comparison of in-service audiometric findings is reflective of a shift in hearing thresholds at any frequency during service. The examiner should acknowledge that the Veteran's service personnel records show a pre-service civilian occupation as a department store stockman for one year, completion of combat training in January 1967, military occupations of Medical Corpsman and Ambulance Driver assigned to artillery and armor units from June 1967, and awards for M-14 Rifle qualification as a marksman (March 1967) and expert (November 1967). Following a review of the claims file, the examiner should state the likelihood that the Veteran's noted hearing loss disorder worsened during service. If there was an increase in the severity of the pre-existing hearing loss disability, the examiner should state the likelihood that the increase was due to the natural progress of the disease. The examiner must provide and discuss the rationale for all stated opinions, whether favorable or unfavorable, and reconcile all stated opinions with any contradictory evidence of record, citing to specific evidence in the file, if necessary. 4. After completing the above development and any additional development deemed necessary, including consideration of whether referral for an extraschedular rating is warranted and the adjudication of entitlement to a TDIU, readjudicate the appeal. If any of the benefits sought remain denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the 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 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 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs