Citation Nr: 18148180 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-42 487 DATE: November 7, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for arthritis is denied. REMANDED Entitlement to an initial disability rating higher than 40 percent for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. There is no evidence that the Veteran’s hypertension originated during service or for many years thereafter, or that it is otherwise etiologically related to service. 2. There is no evidence that the Veteran’s arthritis originated during service or for many years thereafter, or that it is otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for arthritis have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served in the Special Philippine Scouts from August 1946 to November 1947. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In his August 2016 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In February and March 2018 letters, he was informed of the date, time, and location of his scheduled hearing. The Veteran did not appear at the hearing and has not provided good cause for his failure to appear or attempted to reschedule the hearing. Based on the foregoing, the Veteran’s hearing request is deemed withdrawn. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis In August 2014, the Veteran filed a claim for service connection for hypertension and arthritis. He did not specify the date of onset of either condition. In response to his claim, the Agency of Original Jurisdiction (AOJ) sent the Veteran a letter in August 2014 requesting, in pertinent part, that he provide medical records relevant to his claims or, if he was unable to obtain the records, to complete authorization forms allowing VA to do so on his behalf. The AOJ also requested the Veteran submit statements by himself or others explaining how his claimed disabilities were related to his military service. The Veteran subsequently submitted September 2014 medical records from private physicians, Dr. F.L. and Dr. R.L. Upon a thorough review, the records do not contain diagnoses or any other reference to hypertension or arthritis. Instead, the records pertain only to hearing impairment and a bladder condition. To date, the Veteran has not provided any statements or other evidence explaining how his claimed hypertension and/or arthritis are related to his military service. The Board has carefully reviewed the entire record, and finds there is no evidence indicating the Veteran’s claimed hypertension and arthritis manifested during service or for many years thereafter. There is likewise no evidence linking the claimed hypertension or arthritis to the Veteran’s service. Instead, the Veteran filed his claims for service connection in August 2014, more than 65 years after his discharge from service, and on his claims form, he provided no indication as to when his hypertension and arthritis originated or were diagnosed. Based on the foregoing, the Board finds a preponderance of the evidence weighs against the Veteran’s claims. Accordingly, the claims for service connection for hypertension and arthritis must be denied. The Board acknowledges that the Veteran has not been afforded VA examinations to address his claims. In this regard, VA must provide a medical examination where there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and 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; but insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017). In this case, there is no medical evidence of diagnoses of hypertension or arthritis. Even if the Board credits the Veteran’s statements to the effect that he has been diagnosed with these conditions, the Veteran has not provided any statement or other evidence of a link between the conditions and his service between 1946 and 1947. For these reasons, the Board finds VA is not required to provide a medical examination or examinations in this case. The Board also briefly notes that VA has not been able to locate the Veteran’s service treatment records (STRs). There is some indication that the STRs may have been destroyed in a fire at the National Personnel Records Center in St. Louis in 1973. In this regard, the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the Board has a heightened duty in a case where the STRs are presumed lost or destroyed). In this case, however, as noted above, there is simply no evidence that the Veteran’s claimed hypertension and/or arthritis manifested during service, or for many years thereafter, or that the conditions are otherwise etiologically related to service. REMANDED ISSUES The Veteran was afforded a VA audiology examination in September 2015. His puretone thresholds indicated significant hearing impairment in both ears. His speech discrimination scores were marked as 0 percent in each ear. The examiner, however, indicated that the use of the speech discrimination or word recognition scores was not appropriate because of “language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate.” The examiner did not specify the reason for the invalidity of the Veteran’s word recognition scores. In this regard, the Board notes the record shows that the Veteran’s first language is not English. Based on the September 2015 puretone threshold results, the RO assigned an initial rating of 40 percent for the Veteran’s bilateral hearing loss. The Veteran continues to seek a higher rating. Under these circumstances, the Board finds a remand is warranted for an additional VA examination. The examiner will be instructed to obtain valid speech discrimination scores, or, if this is not possible, to explain why. If it is determined the Veteran is unable to adequately communicate in English, an examiner who speaks the Veteran’s native language will be requested. Regarding the Veteran’s claim for TDIU, the Board finds the claim is inextricably intertwined with the claim for an increased initial rating for bilateral hearing loss. Therefore, the issue of entitlement to a TDIU is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1993) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Afford the Veteran a VA examination to determine the current severity of his service-connected bilateral hearing loss. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. If it is determined the Veteran’s speech discrimination scores are invalid, the examiner should explain the specific reason why this is so. If it is determined the Veteran is unable to communicate adequately in English, the examination should be conducted by a VA examiner who speaks the Veteran’s native language, if possible. 3. Undertake any other development determined to be warranted. 4. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs