Citation Nr: 1801195	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-20 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.  

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for gastroesophageal reflux disease (GERD) with Barrett's syndrome.  

5.  Entitlement to service connection for gastroparesis claimed as a stomach condition.


REPRESENTATION

Appellant represented by:	The American Legion



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.A. Williams, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from July 1969 to August 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. 

In May 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing.  A transcript of the hearing is associated with the claims file. 

The issues entitlement to service connection for GERD with Barrett's syndrome and gastroparesis 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 bilateral hearing loss did not have its onset in service, did not manifest to a compensable degree within one year of separation, and is not otherwise related to service.

2.  The Veteran's tinnitus did not have its onset in service, did not manifest to a compensable degree within one year of separation, and is not otherwise related to service.

3.  The evidence is in relative equipoise as to whether Veteran's hypertension is aggravated by his service-connected posttraumatic stress disorder (PTSD).  


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for service connection for tinnitus have not been met.  38 U.S.C. 
§§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

3.  The criteria for service connection for hypertension have been met.  38 U.S.C. 
§§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

Moreover, sensorineural hearing loss and tinnitus may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service.  38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015).  A disorder may be service-connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b).

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. 38 C.F.R. § 3.385.  Additionally, the threshold for normal hearing is from 0 to 20 dB; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2016).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. § 3.310 (a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). 

Hearing Loss and Tinnitus

The Veteran contends that his current hearing loss is due to acoustic trauma in service.  See May 2017 Hearing Transcript.  The Board notes that noise exposure is consistent with the duties and circumstances described in the Veteran's personnel records.  As such, in-service noise exposure is substantiated.  

The Veteran has current diagnoses of bilateral hearing loss and tinnitus.  See June 2017 Private Audiogram.  As such, the issue that remains disputed is whether these disabilities are related to service, manifested to a compensable degree within one year of separation, or are otherwise related to service.

Service treatment records are silent for complaints of or treatment for hearing loss or tinnitus.  Notably the Veteran has several audiograms during service including in March 1972, March 1976, April 1978, March 1982, and May 1986.  All of the Veteran's in-service audiograms show hearing within normal limits.  At separation, the Veteran denied hearing loss and ear, nose, or throat trouble.  

At separation in March 1989, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5 
0
5
0
0
LEFT
10
0
0
0
5

In May 1969 induction, puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5

5
LEFT
10
0
0

10

An August 2011 private treatment note indicates that the Veteran had no loss of hearing.  February 2012, June 2012, and November 2012 private treatment notes indicate that the Veteran denied symptoms of hearing loss and tinnitus.  

The June 2013 VA examiner opined that the Veteran's hearing loss was not related to noise exposure in service.  The examiner explained that the Veteran's hearing was considered within normal limits bilaterally at discharge.  The examiner also indicates that when comparing the July 1969 audiogram with the March 1989 audiogram there was a significant threshold shift at 2 kHz in the right ear and 4 kHz and 6 kHz in the left ear, thus noise exposure in service contributed to the threshold shift at the noted frequencies. 

Similarly, the June 2013 examiner opined that the Veteran's tinnitus was not related to noise exposure in service.  Notably, the Veteran reported that his tinnitus started approximately 5 years earlier.  The examiner reasoned that there were no complaints of tinnitus in the service treatment records or post service records within one year of separation.  The first mention of tinnitus in the Veteran's claims file was on his 2011 service connection claim.  

The Board finds that the VA examiner's opinions adequate and highly probative to the question at hand.  The examiner possessed the necessary education, training, and expertise to provide the requested opinions.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In addition, the VA examiners provided detailed rationales for the opinions, and opinions were based on examinations and interviews of the Veteran, as well as on a review of the service treatment records, the post-service treatment records, and the lay statements of the Veteran.  The opinions considered an accurate history, were definitive and supported by a detailed rationale that considered the lay and medical evidence.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The VA examiner could not link the Veteran's current hearing loss and tinnitus to service.  

Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection.  VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter.  Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991).  Thus, the Board finds that the most persuasive evidence of record shows that the current bilateral hearing loss and tinnitus is not related noise exposure in service.  

The Board has also considered the Veteran's assertions that his hearing loss is related to noise exposure in service.  The Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss. Therefore, the Veteran's lay opinion could possibly be sufficient to serve as the required nexus for his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316   (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element).  However, determining the precise etiology of the Veteran's hearing loss is not a simple question, as there are conceivably multiple potential etiologies of the Veteran's sensorineural hearing loss.  Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing.  In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss is not sufficient to place the nexus question in equipoise. See Kahana v. Shinseki, 24 Vet. App. 428, 438   (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis."). 

As previously noted, sensorineural hearing loss may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service.  38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015).  In addition, a disorder may be service-connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b).  

Here, however, the evidence does not show that his bilateral hearing loss manifested to a compensable degree within one year of separation from service.  In fact, the Veteran's treatment records do not show complaints of hearing loss prior to 2011 - approximately 22 years after separation.  Similarly, during the June 2013 audiological evaluation, the Veteran specifically stated that he noticed his hearing loss 5 years earlier - circa 2008 or approximately 19 years after separation.  Therefore, presumptive service connection is not warranted. 

In reaching this conclusion, 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 claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

Hypertension 

The Veteran asserts that his hypertension is proximately due to or aggravated by his service connected PTSD.  See July 2013 Rating Decision; May 2017 Hearing Transcript.  

In a November 2015 private treatment note, the Veteran reported trouble sleeping and anxiety.  In an assessment, Dr. I.R.S, reported, "[The Veteran's hypertension] is more likely than not related to posttraumatic stress disorder given the new information.  The patient is clearly an anxious individual." 

In a March 2016 VA medical opinion, the examiner opines that the Veteran's hypertension was less likely than not due to his service connected PTSD.   However, the examiner stated that the Veteran's active significant risk factors for hypertension include a family history, obesity, relative sedentary life-style, prednisone effect, alcohol consumption, and sodium intake.  The examiner further explains that the active and not as significant risk factors include the Veteran's mild, chronic PTSD.  The examiner states that the manifestation of the Veteran's hypertension occurred by 2004 well before documented clinical manifestations that led to a PTSD assessment.  

The examiner explained that general anxiousness and/or stress episodes, startle reactions, hypervigilant states, can likely transiently elevate (exacerbate) blood pressure readings but not necessarily aggravate the hypertension condition itself or cause hypertension as based on current evidence-based medical literature.  The examiner reports that review of recent or current documented evidence-based medical literature indicates a lack of medical scientific valid results to support a causal relationship between PTSD and hypertension at this time.  There are multiple scientific medical hypotheses being explored regarding the underlying pathological processes that may be associated or correlated with PTSD, and may play a role in elevated blood pressure, but there are no consistent, valid, verifiable reproducible results to indicate causation at this time.  

The examiner then cites medical reference.  One such reference stated, "The physiological effects of PTSD appear to be extensive, affecting multiple organ systems with intertwined health consequences including hypertension, hyperlipidemia . . .  However, mechanistic evidence is lacking, and further research is warranted to elucidate the connection between PTSD and physical diseases."  

The examiner cites another medical text stating, "Although findings concerning blood pressure in PTSD are mixed, the overall direction of this relationship appears to be positive, with greater rates of hypertension in PTSD."  

Although the VA examiner does not endorse a relationship between PTSD and hypertension, the examiner does report that the Veteran's anxious states due to PTSD could impact his hypertension by increasing his blood pressure.  The Board finds that the examiner's findings coupled with the November 2015 private opinion place the evidence in relative equipoise.  Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's hypertension is aggravated by his service-connected PTSD.  Service connection for hypertension is warranted.   


ORDER

Entitlement to service connection for hearing loss is denied. 

Entitlement to service connection for tinnitus is denied.  

Entitlement to service connection for hypertension is granted.


REMAND

The Veteran was afforded a VA examination for his gastroparesis and GERD in June 2013.  The examiner rendered an opinion regarding direct service connection.  During the May 2017 hearing, the Veteran asserted that his gastroparesis and GERD may be proximately due to or aggravated by his service-connected PTSD.  Thus, remand for an addendum medical opinion regarding secondary service-connection is warranted. 

In addition, the Veteran reports he receives private medical treatment for his stomach conditions every 3 months.  See May 2017 Hearing Transcript.  As such, all outstanding treatment records should be associated with the record.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and ask that he provide a release for VA to secure any private records of treatment he received that have not been associated with the claims file.  The Veteran is to be notified of any unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.    

2.  Obtain a VA addendum opinion by the same June 2013 examiner, (or another appropriate examiner if unavailable), to provide opinions as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's gastroparesis and GERD with Barrett's syndrome were caused by OR aggravated (i.e., permanently worsened beyond the natural progress of the disorder) by his service-connected PTSD.  If aggravation is found, then the examiner should quantify the degree of such aggravation, if possible.

3. Readjudicate the appeal. 

The appellant 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 that all claims 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. §§ 5109B, 7112 (West 2014).





______________________________________________
L. M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs