Citation Nr: 1617262 Decision Date: 04/29/16 Archive Date: 05/04/16 DOCKET NO. 08-05 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active military duty in the U.S. Army from January 1967 to January 1970 and in the U.S. Air Force from February 1991 to April 1991. The Veteran also had additional reserve service, to include in the Florida Army National Guard; all periods of active duty during his National Guard service was authorized by the Governor of Florida. The appeal is before the Board of Veterans Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St Petersburg, Florida. This case was before the Board in February 2012, November 2013 and August 2014 when it was remanded for additional development. The Board finds that there has been substantial compliance with its remand directives for these issues. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. Hearing loss disability was not shown during any period of active duty service or for many years thereafter. 2. The Veteran did not become disabled due to an ear disease or injury incurred in the line of duty ACDUTRA, and did not become disabled due to an ear injury incurred in the line of duty during INACDUTRA. 3. No current hearing loss disability is etiologically related to service, to include noise exposure therein. 4. Hypertension was not shown during any period of active duty service or for many years thereafter, and is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred or aggravated in service, and sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2015). 2. Hypertension was not incurred or aggravated in service, nor may service connection be presumed to have been so incurred. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issues decided herein, VA provided adequate notice in a letter sent to the Veteran in April 2007. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records (STRs), as well as identified post-service medical treatment records, have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative has identified any other outstanding evidence and none is found by the Board. The Veteran has been afforded the appropriate VA examinations to determine the nature and etiology of his claimed disabilities. The February 2014 VA examinations were adequate, as they were predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include the statements of the Veteran and examination results, and the examiner provided rationale for the opinions stated, relying on and citing to the records reviewed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). II. Service Connection - Laws and Regulations Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of in active duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a), 3.304. In addition, certain chronic diseases, including hypertension and organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If the condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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 disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. III. Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran claims entitlement to service connection for hearing loss disability as due to noise exposure during service. Specifically, the Veteran has asserted that he was on security detail at McDill Air Force Base (AFB) from 1989 to 1994, during which time he was exposed to military aircraft noise from the flight line. He also maintains that he was first aware of his high blood pressure when he experienced atypical chest pain while on a weekend drill in Plant City Florida, on May 17, 1997. At that time, he was taken to the hospital by the unit medic and was noted to have high blood pressure. He indicates that eventually he was released and followed up with his private physician, who put him on blood pressure medication, which he has taken since that time. However, based on the evidence of record, the Board finds that service connection is not warranted for bilateral hearing loss or hypertension. The Veteran served on active military duty in the Army from January 1967 to January 1970 and in the Air Force from February 1991 to April 1991. The Veteran also had additional service in the Florida Army National Guard. Specifically, service personnel records show that the Veteran was on INACDUTRA on May 17, 1997. All periods of active duty during his National Guard service, including verified periods from July 3, 1998, to July 8, 1998, and from November 4, 2001, to November 28, 2001, was authorized by the Governor of Florida, not the President of the United States. Service personnel records show that the Veteran was a clerk typist from 1967 to 1969 and a law enforcement specialist in 1991. STRs include a January 1967 Report of Medical History, wherein the Veteran denied hearing loss and high blood pressure. A January 1967 enlistment Report of Medical Examination shows that blood pressure was 120/90. Audiometric testing did not reveal hearing loss disability for VA purposes. A September 1972 Report of Medical History notes that the Veteran denied hearing loss and high blood pressure. A September 1972 periodic Report of Medical Examination shows that blood pressure was118/78. Audiometric testing did not reveal hearing loss disability for VA purposes. An April 1991 periodic Report of Medical Examination shows that blood pressure was 138/78. Audiometric testing did not reveal hearing loss disability for VA purposes. A June 1994 cardiovascular risk screening report notes that the Veteran's blood pressure was 412/90. A February 1996 Report of Medical History notes that the Veteran denied hearing loss and high blood pressure. He stated that he was not taking any medication. A February 1996 Report of Medical Examination notes no findings of hearing loss disability for VA purposes. Blood pressure was recorded as 118/82. The Veteran underwent an exercise tolerance (cardiac stress) test in March 1996; the results were negative. STRs dated May 17, 1997 note that the Veteran was unloading equipment in the motor pool when he began having chest pain and some tingling throughout his body. The Veteran went to see the medics; his blood pressure was elevated which prompted the medics to send him to the hospital. Private hospital records note the Veteran's complaints of chest pain radiating to the left arm and shortness of breath. Blood pressure readings for the day were as follows: 150/84 at 9:30 a.m.; 151/94 at 9:38 a.m.; 120/85 at 12:24 p.m.; 124/80 at 12:25 p.m.; and 124/77 at 12:40 p.m. Cardiac evaluation was within normal limits. The Veteran was discharged on March 18, 1997. STRs note a diagnosis of gastroenteritis. A November 2001 Report of Medical History notes that the Veteran was taking Accupril for high blood pressure. He reported seeing a private physician for his hypertension. He denied hearing loss at that time. A November 2001 Report of Medical Examination notes no findings of hearing loss disability for VA purposes. On examination, blood pressure was 132/84. Subsequent VA and private treatment records note ongoing treatment for hypertension. In a statement submitted in March 2011, the Veteran maintained that while in the reserves between 1989 and 1994 he performed security duty on a tarmac where he was exposed to noise from aircraft. He also maintained that he was part of an artillery unit from 1989 to 1994, which further exposed him to loud noises. A December 2013 VA audiology report notes the Veteran's complaints of hearing loss since 1991. A February 2014 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) report notes the Veteran's complaints of bilateral hearing loss since 1991 and a history of noise exposure from aircraft and artillery in service. Examination revealed a diagnosis of normal to moderate bilateral sensorineural hearing loss. After reviewing the claims file, to include the Veteran's contentions, the examiner opined that it is less likely as not that the Veteran's hearing loss disability is related to his active military service, to include any noise exposure therein. In this regard, the examiner stated: Review of [the claims] file revealed normal hearing on multiple in-service exams (500-4000 Hz) and there were no significant in-service threshold shifts present in either ear. A significant change in hearing is defined as a change greater than normal measurement error (ie [sic] greater than 10 dB). . . . Therefore, it is the opinion of this examiner that it is not at least likely as not that the Veteran's hearing loss is a result of noise exposure while in the service. The examiner specifically referenced bilaterally normal hearing to calibrated audiometrics (500-4000 Hz) on examinations in January 1967 and September 1972. A March 1988 examination showed normal hearing 500-4000Hz bilaterally to calibrated audiometrics and mild hearing loss at 6000Hz in the left ear. April 1991, April 1994, February 1996, and November 2001 examination showed normal hearing 500-6000 Hz bilaterally to calibrated audiometrics. Of note, the November 2001 examination showed one slightly elevated reading of 25 decibels at 4000 hertz in the left ear. The examiner stated: There were no threshold shifts between [the Veteran's] exams dated: 1/5/67 and 9/9/72 4/10/91 and 4/6/94 4/10/91 and 2/10/96 4/10/91 and 11/28/01 4/6/94 and 11/28/01 4/6/94 and 2/10/96 2/10/96 and 11/28/01 A February 2014 hypertension DBQ report notes the Veteran's report of being diagnosed with high blood pressure in April 1997, while in service. He stated that he was started on medication by his private physician a few months later. Currently, the Veteran was being followed for hypertension at the VA. After examining the Veteran and reviewing the claims file (including the May 1997 hospitalization records), the examiner opined that it is less likely as not the Veteran's hypertension was caused by his military service, to include active duty service from 1967-1970 and in 1991. In this regard, the examiner stated review of Veteran's STRs showed no documentation of a diagnosis of or treatment for hypertension until November 2001, when the Veteran reported taking Accupril. Moreover, there is no documentation from a private medical provider of a diagnosis of or treatment for hypertension any earlier than November 2001. Based on the aforementioned evidence, the Veteran is not shown to have hearing loss disability or hypertension during his only periods of active duty service (from January 1967 to January 1970 or from February 1991 to April 1991). Moreover, there is no evidence to indicate that he was diagnosed sensorineural hearing loss or hypertension within one year of his leaving active duty in 1970 or 1991, so as to warrant service connection on a presumptive basis under 38 C.F.R. § 3.307 and 3.309. To the extent the Veteran is alleging that his hypertension is a result of injury or disease incurred or aggravated during his ACDUTRA or INACDUTRA service, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a). Thus, to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d) ; Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., his periods of active duty in the Army and the Air Force) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA if the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). While the Veteran maintains that he was diagnosed with hypertension in May 1997, no such diagnosis is noted in the medical records. Moreover, even if this were the case, it is notable that hypertension may not be service connected based on a manifestation during INACDUTRA. Furthermore, presumptive periods for service connection claims do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Board has also reviewed the Veteran's military orders with regards to his National Guard service for Operation Firestorm/Safeharbor from November 4, to November 28, 2001. These show that the Veteran was ordered to service by the Governor of the State of Florida under the provisions of the Florida Constitution. Such service does not fall under the provisions of Federal service for which VA benefits would be authorized. See 10 U.S.C. § 12401. The first medical finding of hypertension was in November 2001 and the first medical findings of hearing loss disability under 38 C.F.R. § 3.385 was in February 2014. The Veteran did not have qualifying military service on either of these dates. In addition, the weight of the competent evidence does not attribute the Veteran's hypertension or hearing loss disability to his military service, despite his contentions to the contrary. None of the competent evidence establishes a relationship between the claimed disabilities and active duty, nor has any treating professional suggested such a conclusion. Specifically, the February 2014 VA examiners stated that the claimed disabilities were not attributable to service. No medical evidence to the contrary has been presented. Regarding the Veteran's assertions, the Board concludes that the medical evidence is of greater probative value than the lay allegations. Medical expertise is required to answer the questions of whether the Veteran's hypertension and hearing loss disability are related to service. The Veteran's lay opinion concerning this matter requiring medical expertise is of no probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection for bilateral hearing loss disability and hypertension, and there is no doubt to be otherwise resolved. As such, the claims are denied. ORDER Service connection bilateral hearing loss disability is denied. Service connection for hypertension is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs