Citation Nr: 18144569 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-11 076 DATE: October 25, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to an earlier effective date for the assignment of a 10 percent rating for tinnitus is denied. REMANDED Entitlement to an increased rating for generalized anxiety disorder with major depression is remanded. FINDINGS OF FACT 1. Hypertension did not manifest during active service and did not manifest within one year of separation from active service, and the probative evidence weighs against a finding that hypertension was incurred in or aggravated during active service. 2. Because the Veteran’s compensation claim for tinnitus was filed over one year after the effective date of June 10, 1999, of the liberalizing law at issue, the 10 percent rating for the service-connected tinnitus cannot be assigned earlier than one year prior to the date of receipt of the claim for increase on June 19, 2012. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309. 2. An effective date of June 19, 2011, for the award of a 10 percent disability rating for service-connected tinnitus is the earliest assignable by law. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.114, 3.151, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to November 1980. 1. Entitlement to service connection for hypertension Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases, such as cardiovascular-renal disease, to include hypertension, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of that disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show 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. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). The Veteran asserts that service connection for hypertension is warranted. Hypertension is present when the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension when the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Board notes that the Veteran’s service medical records do not show any reports or treatments for hypertension. In an August 1978 service medical health questionnaire, the Veteran reported “no,” he did not have high or low blood pressure. The Veteran’s blood pressure was record as 100/60 on a September 1980 report of medical examination for separation from service. The Veteran’s vascular system examination was normal. October 2011 VA medical records show that the Veteran had an elevated blood pressure of 147/97. The record noted a medical history of hypertension beginning three years prior. Subsequent VA medical records show continued treatment in the form of medication for diagnosed hypertension. After review of the evidence, the Board finds that the Veteran did not manifest hypertension during service, or continuously manifest symptoms of hypertension in the years after service, including to a degree of ten percent within one year of service separation. The Board also finds that hypertension did not manifest within one year of separation from service and therefore cannot be presumed to be service-connected under the provisions for chronic diseases. In fact, the medical record of evidence indicates that the Veteran was not diagnosed with hypertension until 2008, approximately 28 years after service. That time period is well beyond the presumptive period of establishing service connection for hypertension as a chronic disease. 38 C.F.R. 3.307, 3.309 (2017). The passage of years between discharge from active service and the first documentation of the claimed disability is another factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000). The Board has also considered that Veteran’s statements submitted in support of the claim. The Board finds that the Veteran is a lay person and although lay persons are competent to provide opinions on some medical issues, the specific disability of hypertension falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hypertension is a complex disease that requires specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and it is not susceptible of lay opinions on etiology. Therefore, the Veteran’s statements cannot be accepted as competent evidence sufficient to establish service connection on a direct basis. The Board notes that while a VA medical opinion was not provided in relation to the Veteran’s claim decided herein, there is not a duty to provide an examination in every case. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the VA’s obligation under 38 U.S.C. § 5103A(d) to provide a Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App.79 (2006). Where the supporting evidence of record consists only of a lay statement, VA is not obligated to provide a Veteran with a medical nexus opinion. 38 U.S.C § 5103A(d) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004) (no prejudicial error in finding that a medical opinion was not warranted because there was no reasonable possibility that an opinion could substantiate the appellant’s claim, as there was no evidence, other than lay assertion, that indicated an event, injury, or disease in service may be associated with symptoms). Here, the only evidence that hypertension is related to active service is the Veteran’s own conclusory statements. There is no medical evidence to support any alleged relationship, and no findings of any event, injury, or disease in service that would trigger the need for an examination. Therefore, the Veteran’s statements are insufficient to trigger VA’s duty to provide an examination with an opinion. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension and the claim must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an earlier effective date for the grant of service connection for tinnitus Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date of the increased shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110(g) (2012); 38 C.F.R. § 3.114(a) (2017); McCay v. Brown, 9 Vet. App. 183, 187 (1996). Similarly, an increase based on revised, liberalizing rating criteria cannot be effective prior to the effective date of the changed criteria, unless specifically provided by the revised regulations. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000 (Apr. 10, 2000) (regarding retroactive application of revised criteria). If a claim is reviewed on the initiative of VA within one year from the effective date of the liberalizing law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the request of the claimant more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(3). In order to be eligible for a retroactive award under § 3.114, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. The provisions of § 3.114 are applicable to original and reopened claims as well as claims for increase. 38 C.F.R. § 3.114(a). Tinnitus is defined as “a noise in the ears such as ringing, buzzing, roaring, or clicking.” Smith v. Principi, 17 Vet. App. 168 (2003). The Court has specifically held that tinnitus is a type of disorder capable of lay observation and description. Charles v. Principi, 16 Vet. App. 370 (2002). Prior to 1976, Diagnostic Code 6260 for tinnitus provided a 0 percent rating. 38 C.F.R. § 4.84(b) (1975). The pre-1976 version of Diagnostic Code 6260 also contained a reference to Diagnostic Codes 8045 and 8046, which allowed for assignment of a 10 percent rating for subjective symptoms, such as tinnitus, which resulted from head trauma or cerebral arteriosclerosis, but without mention of acoustic trauma. Effective on March 10, 1976, Diagnostic Code 6260 for tinnitus was revised to allow for a 10 percent rating for persistent tinnitus that was a symptom of head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.84(b) (1976); 41 Fed. Reg. 11291 (March 10, 1976). The March 1976 change in the regulation amounts to a liberalizing change, as it now provided for a 10 percent compensable rating for persistent tinnitus from acoustic trauma. Effective June 10, 1999, Diagnostic Code 6260 for tinnitus was again revised to allow for a 10 percent rating for recurrent tinnitus, with no mention of etiology as a factor. 38 C.F.R. § 4.87 (2000); 64 Fed. Reg. 25202-25210 (May 11, 1999). The June 1999 change in the regulation amounts to a liberalizing change, as it now provided for a 10 percent rating for “recurrent” tinnitus without a requirement that it had to be “persistent,” and with no mention of etiology as a factor. Effective June 13, 2003, Diagnostic Code 6260 for tinnitus was again revised to clarify existing VA practice that only a single 10 percent rating is assigned for recurrent tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Note (2) (2017); 68 Fed. Reg. 25822 (June 2003); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). That, however, does not amount to a liberalizing change, but rather a clarification of existing law. The Veteran established service connection for occasional tinnitus in the left ear, rated 0 percent, effective August 23, 1984. On June 19, 2012, the Veteran filed a claim for an increased rating for service-connected tinnitus. An August 2012 rating decision, assigned a 10 percent rating for recurrent tinnitus. It was noted that a single rating for recurrent tinnitus was assigned, regardless of whether the sound was perceived in one ear, both ears, or in the head. A July 2014 rating decision determined that clear and unmistakable error had been made in the August 2012 rating decision, which assigned a 10 percent rating for tinnitus as of June 19, 2012. The decision noted that the laws governing the criteria utilized to rate tinnitus had changed in June 1999, and that the evidence of record showed that the Veteran had recurrent tinnitus since service. Since the Veteran met the criteria for an increased rating on the date of the change in the law, the Veteran was entitled to the increased rating effective one year prior to the date of claim for increase. The July 2014 rating decision assigned a 10 percent rating for tinnitus, effective June 19, 2011. On July 30, 2014, the Veteran submitted a notice of disagreement with the July 2014, rating decision assigning an earlier effective date for the 10 percent rating for tinnitus. The Veteran stated he believed an earlier effective date was warranted for the 10 percent rating. The Board acknowledges that the Veteran had recurrent tinnitus due to acoustic trauma suffered during service on the effective date of the liberalizing law of June 10, 1999, and continuously thereafter. 38 C.F.R. § 3.114(a). Nevertheless, the Board finds that, as a matter of law, the Veteran is not entitled to an effective date earlier than June 19, 2011 for the assignment of a 10 percent rating for service-connected tinnitus. The Board must apply 38 C.F.R. § 3.114 to determine the appropriate effective date in this case. The claims file does not contain any communication from the Veteran or representative indicating an intent to seek, or a belief in entitlement to, an increased rating for tinnitus after the June 1999 liberalizing amendment for tinnitus, but prior to the June 19, 2012, date of the actual claim for increase. 38 C.F.R. §§ 3.1(p), 3.155(a). More than one year had already passed since the June 1999 liberalizing law that permitted a 10 percent rating for tinnitus. Therefore, the Veteran is only entitled to an effective date up to one year prior to the date of the claim for an increased rating. As the evidence of record showed recurrent tinnitus one year prior to the date of the claim, June 19, 2012, an effective date of June 11, 2011, but no earlier, is warranted. There is no evidence of record that a tinnitus claim was reviewed on the initiative of VA or at the Veteran’s request within one year after the effective date of the liberalizing legislation of June 10, 1999. 38 C.F.R. § 3.114(a)(1). The Veteran does not contend otherwise. There is also no evidence of record that a tinnitus claim was reviewed on the initiative of VA more than one year after the liberalizing legislation. 38 C.F.R. § 3.114(a)(2). The Veteran does not contend otherwise. Based on the foregoing, the Veteran’s earlier effective date claim for the assignment of a 10 percent rating for the service-connected tinnitus prior to June 19, 2011, must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to an increased rating for generalized anxiety disorder with major depression is remanded. The Board finds that additional development is required for the claim on appeal for entitlement to an increased rating for a psychiatric disability. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim. A July 2014 rating decision established service connection for chronic adjustment disorder and assigned a 30 percent rating. That rating decision cites a VA examination conducted at the Brooklyn VA Medical Center dated July 25, 2014. In a March 2015 private medical assessment, Dr. H.H.G. cites a VA examination for mental disorders dated July 25, 2014, used in the assessment. The July 25, 2014 VA examination for mental disorders is not of record. Remand is necessary to obtain those medical records. The Board notes that a 30 percent rating has been assigned for general anxiety disorder effective March 27, 2013. A 70 percent rating has been assigned effective May 12, 2015. A 100 percent schedular rating has been assigned, effective December 15, 2016. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. Specifically, obtain a July 2014 VA examination for mental disorders. Any unsuccessful attempts to secure those records must be documented in the claims file. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel