Citation Nr: 1621379 Decision Date: 05/26/16 Archive Date: 06/08/16 DOCKET NO. 13-33 274 ) 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 bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to October 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains records of recent VA outpatient treatment which have been duly considered by the RO as the Agency of Original Jurisdiction (AOJ), with the remainder of the documents in that file being either irrelevant or duplicative of the existing evidence in VBMS. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The most probative evidence weighs against a finding that the Veteran's currently diagnosed hypertension is related to his military service or that it manifested within a year after discharge. 2. The most probative evidence weighs against a finding that the Veteran's current bilateral hearing loss is related to his military service or that it manifested within a year after discharge. 3. The Veteran's tinnitus began during his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In service connection claims, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO provided the Veteran with a notification letter in October 2010, prior to the initial decision on the claims. In the letter, the RO notified the Veteran of the evidence necessary to substantiate the claims and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained. The Veteran and his representative have not notified VA of any additional, outstanding records that should be obtained. The Board notes that some of the Veteran's STRs are unavailable as they are; however, the RO attempted to obtain these records and properly notified the Veteran of such unavailability in a June 1999 letter. As such, there is no prejudice to the Veteran in moving forward with a decision without such records. Regarding the unavailable records, there is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But even assuming that the service records are unavailable, there is no heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not lower the legal standard for proving a claim, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). Regarding his hearing loss and tinnitus, the Veteran was also provided with VA examinations and opinions May 2011, March 2015 and December 2015. Regarding his hypertension, the Veteran was provided a VA examination and opinion in December 2015. The Board finds the examinations to be adequate because the examiners reviewed the claims file, examined the Veteran, and provided explanations for the etiological opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of the examinations that were obtained. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). Finally, the Board finds that there has been compliance with the prior July 2015 remand as the AOJ obtained an addendum opinion for the Veteran's hearing loss and hypertension examination and opinion as directed. Additionally, the RO notified the Veteran he needed to submit authorizations so that they could obtain certain private records. This was done and the private records were obtained in September 2015. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Veteran did not provide authorizations for all providers that the RO requested, VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus there is substantial compliance with the Board remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required where there was substantial compliance with the Board's remand instructions). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Entitlement to Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease 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). Where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. 38 C.F.R. § 3.303(b). In order to show a 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 a diagnosis including the word "chronic." If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. 38 C.F.R. § 3.303(b). Entitlement to service connection based on chronicity or continuity of symptomatology applies only when the disability is due to a disease enumerated on the list of chronic diseases. See 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, sensorineural hearing loss, and tinnitus are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Hypertension For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Under the VA Schedule for Rating Disabilities, the requirements for a 10 percent rating for hypertension are "diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control." Id. Initially, the Board finds that there is a current diagnosis of hypertension. Private medical records indicate that hypertension was diagnosed around the year 1990. Therefore, the first element of Shedden is satisfied, as the Veteran has a current disability, hypertension. Regarding an in-service notation of a chronic disability and in-service onset, the Veteran's STRs are silent for any complaints, treatment, or diagnosis of hypertension. At his November 1955 entrance physical his blood pressure was 150/78. In December 1957 the Veteran's blood pressure reading was 120/78. At the Veteran's October 1959 separation examination, his blood pressure reading was 125/80. At his service discharge report of medical history, the Veteran denied having high blood pressure. The Veteran has reported that he was told at discharge that he had hypertension. Although the Veteran is competent to report what he is told by a medical provider, this statement is outweighed by a 2015 VA examiner who determined, based upon a review of the STRs, that hypertension was not present at discharge and that the blood pressure readings during service were not elevated. Accordingly, the Board finds that service connection is not warranted based on a chronic disease noted during service or due to diagnosis during service. Additionally, the other evidence of record does not demonstrate diagnosis of hypertension until 1990, which is not within one year of service discharge. Accordingly, service connection is not warranted on a presumptive basis. Finally, the Board finds that service connection for hypertension is not warranted based on direct service connection. As noted above, hypertension was not diagnosed during service. Furthermore, the other evidence of record demonstrates that it is not related to service. The Veteran was afforded a VA examination for his hypertension in December 2015. The examiner opined that it was less likely than not that the hypertension was caused by or related to the Veteran's service. In support, the examiner stated that blood pressure readings in the STRs were not considered elevated, and that the official diagnosis of hypertension was in approximately 1990. The Board finds this opinion probative as it was based upon a review of the relevant medical records and provided a supporting explanation. Accordingly, the Board accords it significant weight. Regarding his own lay assertions, Veteran has asserted that hypertension has affected him since his service. The Board also notes the Veteran's October 2013 assertion that his separation examination was hurried. However, the Board again points to the fact that the Veteran himself denied high blood pressure in his service discharge report of medical history. Therefore, the December 2015 VA etiological opinion outweighs the Veteran's statements. Therefore, despite the Veteran's assertions of belief that his service caused his hypertension, he has provided no medical support for his opinion. Establishing the etiology of hypertension is not capable of lay observation but requires medical knowledge as it is a complex internal medical process. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (noting that lay persons are competent to provide opinions on some medical issues); but see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). For the reasons and bases expressed above the Board finds that the weight of the probative evidence is against the Veteran's claim of entitlement to service connection for hypertension. The benefit sought on appeal is thus denied. Bilateral Hearing Loss The Veteran asserts that he has bilateral hearing loss as a result of noise exposure during active duty. Specifically, he reports exposure to noise due to his duties as a gas plant operator. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures pure tone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. Impaired hearing for VA purposes is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; 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. First, the Board finds that the Veteran has a current hearing loss for VA purposes. The May 2011 VA examination noted multiple auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz were 40 decibels or greater. 38 C.F.R. § 3.385. Second, the Board finds there is noise exposure during service. The Veteran provided competent and credible testimony of noise exposure without hearing protection. The Veteran's DD-214 indicates he was a gas plant operator during service. Thus, the Board accords these statements probative weight because they are consistent with the places, types, and circumstances of the Veteran's service as shown by his service record. 38 U.S.C.A. § 1154(a) (2015). Accordingly, the issue for resolution in this case is whether the Veteran's current hearing loss is related to noise exposure during active service. Upon his entrance examination in 1955, the Veteran was afforded an audiogram which demonstrated normal hearing upon a whisper test. A 1959 discharge report of medical examination, converted from ANSI to ISO units, showed as follows: HERTZ 500 1000 2000 4000 RIGHT 20 15 15 10 LEFT 20 10 15 20 At the corresponding October 1959 service discharge report of medical history, the Veteran reported that he had never experienced problems with his ears or had worn hearing aids. The Veteran was afforded a VA audiological examination in May 2011. At that examination, the examiner noted that the Veteran's chief complaints were decreased hearing after exposure to noise in-service and difficulty hearing on the telephone. His test results, with pure tone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 50 70 70 LEFT 20 10 50 70 70 After his examination of the Veteran and consideration of his complaints, the examiner diagnosed normal to severe bilateral hearing loss. The VA examiner opined that based on the Veteran's claims file and normal hearing upon separation, it was not at least as likely as not that the Veteran's hearing loss was related to service. After Board remand, the Veteran was afforded another VA examination in December 2015 to convert his discharge examination audiogram into ISO units and consider the auditory shift of his left ear at separation at 250 Hertz. At that examination, the Veteran's test results, with pure tone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 60 70 75 LEFT 15 5 55 70 70 After this examination the examiner found that the Veteran's bilateral hearing loss was less likely than not caused by or related to service, including noise exposure in service. The examiner supported his opinion by noting that he reviewed the Veteran's claims folder, including his STRs, and found that the Veteran's bilateral hearing loss was more likely age related than it was related to his service. The examiner considered the Veteran's civilian noise exposure of working as a lumber yard foreman and fork lift operator and found that the left ear hearing threshold shift to 25 decibels at 250k frequency, was within normal limits according to the Handbook of Standard Procedures for Audiology Compensation Pensions and Examinations (2004). With regard to whether the Veteran is entitled to presumptive service connection for his bilateral hearing loss, the most probative evidence of record demonstrates that symptoms of bilateral sensorineural hearing loss were not continuous after service separation, including that hearing loss did not manifest to a compensable degree within one year of service separation. No hearing loss was "noted" during service. There are no other reports of symptoms or treatment that constitute manifestations sufficient to identify the disease entity and to establish chronicity. See 38 C.F.R. § 3.303(b). Finally, there were no manifestations or diagnosis within one year. See 38 C.F.R. §§ 3.307, 3.309. Although the Veteran reported hearing loss since service, these statements are outweighed by the 2015 VA examiner's finding that there was no hearing loss at service discharge. Service connection under these provisions is not warranted. Service connection is also not warranted on a direct basis. The evidence of record also does not reveal symptoms, findings, or diagnosis of hearing loss during service or in the years immediately following service. Rather, at service separation, the Veteran's hearing was normal. This decreases the probative value of his current lay statements that hearing loss existed during service and since that time. See Caluza, supra, aff'd, 78 F.3d 604 (Fed. Cir. 1996). Furthermore, the first objective medical findings of hearing loss were not until May 2009, more than 40 years after the Veteran separated from service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). Additionally, the Board finds the December 2015 examiner's opinion to be highly probative. The examiner considered all of the evidence available, and was fully apprised of the Veteran's military and post-military noise exposure and addressed the in-service noise exposure. The examiner's opinion was based upon a thorough review of the claims folder, to include the in-service audiograms, and she provided detailed rationale in support of the opinion. The Board finds the opinion provided by the December 2015 VA examiner to be of high probative value. Additionally, the examiner's medical opinion outweighs the Veteran's lay assertions of a nexus as he is not competent to provide such a complex medical opinion. Therefore, bilateral hearing loss has not been shown to have onset during service, be related to in-service noise exposure, be manifest to a compensable degree within one year of service separation, or presumed to have been incurred in service. Therefore, service connection for bilateral hearing loss is not warranted. Tinnitus The Board finds that the evidence of record supports a finding of service connection for tinnitus. First, the Veteran has a current diagnosis of tinnitus; at a December 2015 VA examination the Veteran reported tinnitus and he has provided further competent and credible statements with regard to current ringing in his ears. See 38 C.F.R. §§ 3.303(a), Shedden, 381 F.3d at 1167; Charles v. Principi, 16 Vet. App. 370, 374 (2002). Second, there is evidence of an in-service event, disease, or injury as the Veteran provided competent and credible statements that he was exposed to loud noises as the result of his MOS as a gas plant operator. Additionally, the Veteran reported tinnitus began during service. See December 2015 VA examination report. His statements are competent as he is capable of testifying regarding ringing in his ears and credible because his statements are consistent with the circumstances of his MOS. See 38 C.F.R. § 3.303(a); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Third, the remaining question is whether the evidence of record shows that the Veteran's current diagnosis of tinnitus is related to in-service noise exposure. The Veteran testified that he has continued to experience tinnitus since it began during active service. The Board finds this testimony competent and credible as he has consistently stated it has existed since service. See Charles, 16 Vet. App. at 374; Caluza, 7 Vet. App. at 511. The Veteran was afforded a December 2015 VA audiological examination. The Veteran reported that the onset of tinnitus as "back in the 50s" and that it had continued over the years as roaring and frying sounds. The examiner opined that the Veteran had normal bilateral hearing levels during his separation examination and thus, tinnitus was less likely as not caused by or a result of military noise exposure. The Board does not find this opinion probative as the rationale failed to address the Veteran's consistent lay statements regarding onset and continuity of symptoms. The opinion is therefore inadequate and lacks in probative value. As such, where the only probative evidence of records indicates that tinnitus began during service and continued thereafter, the Board concludes that a grant of service connection for tinnitus is warranted. ORDER Service connection for hypertension is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs