Citation Nr: 18141604 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 16-22 325 DATE: October 11, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for high blood pressure is denied. Service connection for coronary artery disease (CAD) (claimed as heart condition) is denied. Service connection for headaches is granted. Service connection for diabetes mellitus type II (DMII), to include as due to herbicide exposure is denied. New and material evidence not having been received to reopen the claim for service connection for prostate cancer is denied. REMANDED Entitlement to an initial disability rating higher than 30 percent for other specified trauma and stressor-related disorder is remanded. Entitlement to an effective date earlier than August 13, 2013 for service connection for other specified trauma and stressor-related disorder is remanded. FINDINGS OF FACT 1. The Veteran is not currently shown to have a bilateral hearing loss disability by VA standards. 2. The record reflects the Veteran had no in-country service, or documented visitation in the Republic of Vietnam, or exposure to herbicide agents, including Agent Orange. 3. There is no probative evidence that high blood pressure, CAD, and DMII were present in service, are presumptively related to service, or are etiologically related to service. 4. Headaches are aggravated by service connected disability. 5. The evidence submitted subsequent to the final February 2011 rating decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for prostate cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for high blood pressure have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for CAD have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for DMII have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for service connection for headaches as secondary to service connected disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 6. New and material evidence has not been submitted, and the Veteran’s claim of entitlement to service connection for prostate cancer, is not reopened. 38 U.S.C. §§ 1154(a), 5108, 7105; 38 C.F.R. § 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to June 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2014 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, in order to prove service connection, a veteran must show: (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009), (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including hypertension, sensorineural hearing loss, DMII, and organic disease of the nervous system can be presumed related to service when a veteran has certain qualifying service and the chronic disease becomes manifest to a degree of 10 percent within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113. For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Section 3.303(b) equates the showing of a chronic disease in service “with a reliable diagnosis of the chronic disease while in service.” See Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013). If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology from the time of service until the present may serve as an alternative method of establishing the second and/or third element of a service connection claim. 38 C.F.R. § 3.303(b). Medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296, 301 (1999). The theory of continuity of symptomatology in service connection claims is limited to those disabilities explicitly recognized as “chronic” by regulation. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. For 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. The law also provides that the Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. If the Veteran was exposed to an herbicide agent during service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R.§ 3.307(d) are also satisfied. Entitlement to Service Connection for Hearing Loss The Veteran was afforded a VA examination in October 2014. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 20 20 LEFT 10 10 10 15 30 The examiner determined that the pure tone test results had good reliability and were valid for rating purposes; however, word recognition performance scores were not reported due to poor reliability of the scores. She determined that the use of the word recognition score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., which made combined use of pure tone average and word recognition scores inappropriate. The diagnosis was normal hearing of the right ear and sensorineural hearing loss of the left ear. The examiner thoroughly reviewed the Veteran’s claims file and noted in-service informal hearing assessments using whispered and spoken voice were recorded as 15/15 for both ears. She also noted the Veteran’s military occupational specialty code was that of an engineman. The examiner reported that speech recognition scores were “best estimates,” as the Veteran’s responses were inconsistent with puretone findings and judged to be “not appropriate” for rating purposes. The examiner concluded that without speech recognition scores, the results of the puretone testing did not identify a ratable hearing loss for VA purposes. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes). A “current disability” means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). In the present case, the competent medical evidence of record does not demonstrate that the Veteran is currently diagnosed with a bilateral hearing loss disability under 38 C.F.R. § 3.385. The March 2014 audiometric testing does not reveal the auditory threshold to be 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz, or the auditory threshold to be 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz. The examiner specifically determined that the use of word recognition scores was not appropriate for the Veteran due to language difficulties, cognitive problems, poor effort, and inconsistent word recognition scores. Therefore, the Board finds that the Veteran does not have a current hearing disability for VA purposes. 38 C.F.R. § 3.385. Moreover, the credible medical evidence contemporaneous to service does not show diagnosis or treatment of hearing loss or acoustic trauma, or a hearing loss disability for VA purposes. The Veteran has not presented any credible evidence that he sought treatment for or was diagnosed with hearing loss within a year of discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, any theory of entitlement based on continuity of symptomatology is not credible. The Board acknowledges that the Veteran contends that he has hearing loss due to his military service. The Board finds that the Veteran is competent to report observable symptoms, such as his own ability to hear. Charles v. Principi, 16 Vet. App. 370 (2002). Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the specific issue in this case, i.e., whether the Veteran has a current hearing loss disability or whether his hearing loss constitutes a chronic disability that manifested during service or within one year of separation, is a question that falls outside the realm of common knowledge of a lay person, as it involves a complex medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship that requires medical testing to diagnose. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the Veteran does not have a current bilateral hearing loss disability for VA purposes. As the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral loss, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to Service Connection for High Blood Pressure, CAD, and DMII Bearing in mind the applicable laws and regulations, and considering the pertinent evidence of record, the Board finds that service connection for high blood pressure, CAD, and DMII is not warranted. The Board initially notes that a July 2010 PIES request and November 2010 JSRRC request provided no conclusive proof of in-country service in Vietnam or any exposure to herbicide agents, including Agent Orange. Accordingly, while high blood pressure, CAD, and DMII are diseases that would warrant a regulatory presumption of service connection as a result of in-service herbicide exposure, this is not applicable to the Veteran’s claim. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). But, the fact that the Veteran may not meet the requirements of a presumptive regulation would not in and of itself preclude him from establishing service connection by way of proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). Therefore, the Board will determine whether the Veteran is entitled to service connection based on direct causation. The Board notes at this juncture that for purposes of VA compensation, 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. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran’s service treatment records show no elevated blood pressure readings and are devoid of reference to complaints of, treatment for, or diagnoses for high blood pressure. Likewise, there is no evidence of complaints, treatment, or diagnoses for any heart issues and DMII. The post-service evidence of record documents diagnoses for high blood pressure, CAD, and DMII. Although VA did not provide the Veteran with a medical examination addressing the high blood pressure, CAD, and DMII claims, none was required in this case. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent lay or medical evidence of disability or recurrent or persistent symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4). McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Board has found that the evidence does not show that the currently diagnosed high blood pressure, CAD, and DMII had its onset in service or within the first post-service year, nor does it suggest a possible link between these conditions and service. Hence, no examinations are necessary. Additionally, the evidence fails to show the onset of a compensable high blood pressure, CAD, and DMII within one year of his separation. The competent medical evidence does not show treatment for these conditions until years after service. Nor does the medical evidence contain any opinions or findings that would suggest a link between the current high blood pressure, CAD, and DMII and active service. The Board acknowledges the Veteran’s assertion that he developed high blood pressure, CAD, and DMII in service. This assertion, however, is not corroborated by the service treatment records, which are devoid of reference to complaint of, or treatment for these conditions. In addition, as a lay person without the appropriate medical training and expertise, the Veteran simply is not competent to provide a probative opinion that he developed high blood pressure, CAD, and DMII during service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). Moreover, although the post-service evidence of record clearly establishes that the Veteran has current disabilities of high blood pressure, CAD, and DMII, there is no probative evidence to establish that high blood pressure, CAD, and DMII had its onset in service or that his current conditions are related to service. To the extent that any of the Veteran’s assertions can be construed as a contention that that he has had high blood pressure, CAD, and DMII since service, any such assertion is also not corroborated by the post-service medical evidence of record, as there were no diagnoses of high blood pressure, CAD, and DMII until years after his discharge from service. In the absence of any probative evidence that high blood pressure, CAD, and diabetes were present in service, are presumptively related to service, or are etiologically related to service, service connection is not warranted on either a presumptive or direct basis and the claims must be denied. As the preponderance of the evidence is against the claims, the statutory provisions regarding resolution of reasonable doubt are not applicable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54. Entitlement to Service Connection for Headaches The Veteran’s service treatment records show no complaints of, treatment for, or diagnoses for headaches. The post-service medical evidence of record documents diagnoses for headaches. A June 2015 headaches (including migraine headaches) disability benefits questionnaire (DBQ), submitted by the Veteran, indicates that the Veteran reported that his headaches “began right after he was discharged from service.” After interviewing the Veteran and reviewing the claims file, the examiner opined that it was as likely as not that the Veteran’s headaches were permanently aggravated by his service-connected anxiety disorder. A March 2014 VA examination diagnosed anxiety disorder and other specified trauma and stressor-related disorder, which is service-connected. Here, the Board finds that the evidence does not show that the currently diagnosed headaches had its onset in service or within the first post service year, nor does it suggest a possible link between the condition and service, but the evidence is in equipoise as whether headaches are aggravated by service-connected disability. In resolving all doubt in the Veteran’s favor service connection for headaches based upon aggravation by a service connected disability is granted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-56. New and material evidence A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and Material Evidence to Reopen the Claim for Service Connection for Prostate Cancer The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for prostate cancer was denied in a February 2011 rating decision. The RO found there was no evidence that prostate cancer was incurred in or caused by military service. The Veteran did not timely appeal the decision, and the decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. In August 2013, the Veteran filed a claim to reopen the claim for service connection for prostate cancer and was denied in an August 2014 rating decision. The RO found that the evidence was not new and material. The evidence considered since the February 2011 rating only includes VA treatment notes, which indicate that the Veteran is followed by a urology clinic for prostate cancer. When considered with previous evidence of record, the Board finds the evidence added to the record since the February 2011 rating decision does not raise a reasonable possibility of substantiating the claim. Specifically, the new evidence does not indicate that prostate cancer was incurred in or caused by military service. As such, the evidence is not new and material and the claim is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND Higher than 30 Percent and Earlier Effective Date for Other Specified Trauma and Stressor-Related Disorder The Veteran’s last VA compensation examination of his other specified trauma and stressor-related disorder was in March 2014. The Veteran has had no subsequent examination to assess the current severity of his condition. While the Board is not required to direct a new examination simply due to the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination. See Palczewski v. Nicholson, 21 Vet. App 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The Board notes that there is evidence of worsening symptomatology. In May 2015, the Veteran submitted to a mental disorders (other than PTSD and eating disorders) DBQ. During the examination, the Veteran reported worsening symptomatology and the examiner indicated deteriorating occupational and social impairment. Thus, after considering the medical evidence and the Veteran’s assertions that his service-connected disabilities have worsened, the Board finds a remand is necessary in order to afford him a new examination that adequately addresses the current severity of service-connected other specified trauma and stressor-related disorder. The Board finds that entitlement to an earlier effective date for the 30 percent disability for other specified trauma and stressor-related disorder is intertwined with the increased rating claim for other specified trauma and stressor-related disorder and, therefore, the Board defers decision on the earlier effective date claim pending the completion of the development directed herein for the rating claim. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to reassess the current severity of his other specified trauma and stressor-related disorder. His claim file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. The examiner should indicate all symptomatology associated with the Veteran’s specified trauma and stressor-related disorder. The examiner should also address any functional impairment caused by this disability. All   findings must be reported in detail and all opinions must be accompanied by a clear rationale. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel