Citation Nr: 18148387 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-35 636 DATE: November 7, 2018 ORDER Service connection for hypertension is denied. Service connection for tinnitus is denied. REMANDED Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of hypertension. 2. The preponderance of the evidence is against finding that the Veteran had tinnitus during service, within one year of service, or which is otherwise due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2002 to November 2004. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, hypertension and tinnitus will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that the preponderance of the evidence is against service connection for hypertension and tinnitus; the claims must each be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Hypertension The Veteran has filed a claim for “high blood pressure.” He has, however, made no specific allegations as to why he believes that he has hypertension that is related to his military service. For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means the diastolic blood pressure (the bottom number) is predominantly 90 or greater, and isolated systolic hypertension means that the systolic blood pressure (the top number) is predominantly 160 or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. The Board concludes that the Veteran does not have a current diagnosis of hypertension and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Medical treatment records associated with the record do not indicate diagnosis or treatment of hypertension. Blood pressure readings contained within these records were not indicative of hypertensive readings to establish hypertension for VA purposes. While the Veteran believes he has hypertension, he is not competent to provide a diagnosis in this case as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to a medical diagnosis. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinions do not constitute competent medical evidence and lacks probative value. This is especially true when weighed against VA treatment records which show no objective findings or treatment of hypertension. The Board acknowledges that the Veteran has not been provided a VA examination. However, as there is no indication of hypertension for VA purposes the threshold in McLendon has not been met. While McLendon establishes a low threshold, the holding makes abundantly clear that there is a threshold that must be met. With no indication of currently diagnosed hypertension the Board finds that the Veteran’s lay contentions alone are insufficient to warrant a VA examination in this case. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 2. Tinnitus The Veteran contends that his tinnitus is due to military service. The Board concludes that while the Veteran has tinnitus, it was not chronic in service or manifested to a compensable degree in service or within the one year presumptive period, and continuity of symptomatology has not been established. During service, there were no reports of tinnitus. The Veteran does not assert and the evidence does not indicate that the Veteran had an onset of tinnitus one year after service, nor experienced a continuity of symptoms following service. The Veteran denied tinnitus on a 2001 hearing conservation questionnaire and on a 2003 Post Deployment Health Assessment. He also denied tinnitus during his January 2005 VA Audiology Examination. Moreover, during the June 2014, VA Audiology Examination, the Veteran reported that he did not know when the initial onset of his tinnitus occurred. Furthermore, review of VA treatment records indicates that during an April 2007 VA primary care initial evaluation the Veteran denied tinnitus. The June 2014 VA examiner opined that the Veteran’s tinnitus was not at least as likely as not related to military noise exposure. In conjunction to the absence of complaints of tinnitus in the various medical records and the Veteran’s uncertainty regarding its onset, the examiner opined that the Veteran’s tinnitus had its onset after separation from military service because the medical literature indicates that as the interval between noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, there is not just a lack of evidence; rather, there is evidence showing normal findings as noted above where the Veteran denied having tinnitus. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Dulin v. Mansfield, 250 Fed. Appx. 338, 2007 WL 2914797 (C.A. Fed. Oct. 5, 2007). In addition, the absence of symptoms interrupts continuity of symptomatology for the claimed tinnitus condition. 38 C.F.R. § 3.303(b); Maxson (It was proper to consider the Veteran’s entire medical history, including a lengthy period of absence of complaints.). The absence of symptoms constitutes negative evidence and opposes the claim. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). Further, the Board finds that the most probative evidence of record is the June 2014 VA examination for the reasons above. Also, it is uncontradicted by another medical opinion. The Veteran has not presented or identified any contrary medical opinion or treatment that supports his claim. 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). The VA examiner’s opinion outweighs the Veteran’s opinion as the VA examiner has medical expertise and the Veteran repeatedly denied having tinnitus over the years. REASONS FOR REMAND 3. Acquired psychiatric disorders The Board cannot make a fully-informed decision on the issue of service connection for an acquired psychiatric disorder because the May 2014 VA examiner has not provided an adequate rationale behind his finding that the Veteran’s diagnosed acquired psychiatric disorder was not etiologically related to military service. Merely referencing a prior adverse rating decision is insufficient and amounts to a failure of the duty to assist the Veteran in development of his claim. See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding “the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion”). Moreover, the Board notes the fact that a medical condition is in remission does not excuse the examiner from providing an etiological opinion for purposes of determining service connection. This is especially true when other medical records indicate continued treatment for an acquired psychiatric disorder contemporaneous with the examination. On remand, the Veteran should be provided another examination to ascertain the etiological cause of all diagnosed acquired psychiatric disorders during the pendency of the appeal, even if in remission at the time of examination. The matter is REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner must address notations in the Veteran’s service treatment records regarding “mood swings” and his referral to the Life Skills Center, his historical diagnosis of PTSD, and hospitalization. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. The examiner must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his/her opinion. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel