Citation Nr: 1751950 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 12-30 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel INTRODUCTION The Veteran served on active duty with the U. S. Marine Corps from September 1969 to June 1971. His service included combat duty in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held in September 2014 before a Veterans Law Judge. By letter in May 2017 the Veteran was notified that the Judge who presided over the hearing was no longer available and, without a response from him, the case would proceed without any additional hearing. With no response from the Veteran, the file is reassigned to the undersigned Veterans Law Judge for further adjudication. A transcript of the September 2014 hearing is of record. In January 2015, the Board considered the issues listed above, as well as claims for service connection for cataracts, dermatitis of the feet, and skin cancer. The Board issued a final decision denying service connection for cataracts, dermatitis of the feet, and skin cancer. Those issues are no longer before the Board. Issues of entitlement to service connection for bilateral hearing loss, tinnitus, and hypertension were remanded for further development. After obtaining new and updated medical opinions, the RO again denied service connection for all remanded issues. The issues of bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's hypertension did not have its onset during and is not otherwise related to his active service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The third element, a causal relationship or nexus between the current disability and the in-service event, may be established by direct evidence or by a presumption. Presumptions are afforded to specific diseases based on exposure to herbicide agents in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Similarly, enumerated chronic diseases are presumptively linked to service when they develop within a prescribed time period. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). At the hearing in September of 2014, the Veteran testified that on occasion he experienced high blood pressure, but he was not currently being treated for hypertension. Because a VA examination was not of record, the issue was remanded for further development and a VA examination was performed in April 2015. The physician saw the Veteran in person and reviewed the case file. She concluded that the Veteran "has a formal diagnosis of hypertension (HTN) dating back to 2009." The first element of service connection, a current disability, in this case a diagnosis of hypertension, is satisfied. The second element of service connection is an in-service illness or event. On entry into service, the veteran reported experiencing "elevated blood pressure" in his early teens. He was examined by a physician who noted the blood pressure issue, as well as other items of medical history, were resolved prior to service. The Veteran's in-service medical records, including his entry and exit examinations, do not reflect hypertension. There is no indication that the Veteran experienced hypertension while on active duty. The Veteran's reported history on his military entrance examination raise the question of whether his hypertension existed before his active service. However, in light of the fact that the same examination report does not indicate a clinical diagnosis of hypertension was made and that the earlier reported hypertension had resolved, the Board finds that the Veteran did not have pre-existing hypertension upon his entry into military service. See 38 U. S. C. A. § 1111; 38 C. F. R. § 3.304(b). Moreover, there is no indication of hypertension in any of the Veteran's service treatment records. The VA examiner was asked to provide an opinion on the etiology of this Veteran's hypertension. She was instructed to address medical studies from the Institute of Medicine on the link between herbicide agent exposure and hypertension in forming her opinion, given the Veteran's military service in Vietnam and his corresponding presumed exposure to herbicide agents to include Agent Orange. The examiner reviewed literature from the Institute of Medicine, which she describes as showing "limited or suggestive evidence of an association between herbicide exposure and the development of [hypertension]." She also considered "the wealth of medical literature [which] supports a strong association between advanced age and obesity and the development of [hypertension]." The examiner concludes that "the likelihood that Agent Orange exposure caused this Veteran's [hypertension] is negligible compared to the likelihood that his age and weight gain were significant contributors to his development of hypertension." The Board finds this medical opinion is competent, credible, and highly probative. The record does not contain any other evidence bearing on the direct causal relationship between the Veteran's service and his current hypertension. Accordingly, the Board finds that the preponderance of the evidence weighs against this Veteran's hypertension being related to his active military service, to include the herbicide agent exposure therein. As a chronic disease, hypertension is presumed to be causally related to service, if it develops to a compensable degree within one year post service. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). The Board finds the VA examiners opinion to be persuasive in setting the time of onset of hypertension as 2009. Thus, service connection for hypertension cannot be established under these presumptive provisions. The preponderance of the evidence is against the claim for service connection for hypertension; there is no doubt to be resolved; and service connection is not warranted. ORDER The Veteran's claim for service connection for hypertension is denied. REMAND The Board's January 2015 order found the November 2011 audiology examination report inadequate for rating purposes and remanded the issues of bilateral hearing loss and tinnitus for further development. The audiologist was directed to consider the Veteran's statement as to the differences between his in-service and post-service noise exposure. The examiner was specifically directed to review the Hearing Transcript, pages 23-26. The examiner did not review the hearing transcript because he stated that "no transcript was found in sources available." Thus, remand is again required for compliance with the Board's prior remand directives. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. Rationale for any opinion rendered must be provided. The examination should be conducted by an appropriate medical provider who has not previously examined this Veteran. The examiner should review the entire claims file, including the hearing transcript from September 2014, and provide an opinion on the following: a. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's bilateral hearing loss is caused by or related to service. The examiner should explain the significance, if any, of the shifts in hearing acuity during service. The examiner should consider the Veteran's reports of excessive in-service noise exposure and his description of post-service noise exposure. The examiner should also consider the Veteran's statements about the symptoms he experienced both in-service and after service. b. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's tinnitus is caused by or related to service. The examiner should consider the Veteran's reports of excessive in-service noise exposure and his description of post-service noise exposure. The examiner should also consider the Veteran's statements about the symptoms he experienced both in-service and after service. 2. Readjudicate the Veteran's claims for service connection for bilateral hearing loss and tinnitus. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires 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). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs