Citation Nr: 1808409	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  17-04 856	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for hypertension, to include as secondary to in-service exposure to herbicide agents and/or service-connected disabilities.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse



ATTORNEY FOR THE BOARD

M. C. Wilson, Counsel


INTRODUCTION

The Veteran served on active duty from June 1964 to June 1967, which included service in the Republic of Vietnam.  

This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  In April 2017, the Veteran and his spouse testified before the undersigned Veterans Law Judge.

In September 2017, the Board requested a medical expert opinion from a member of the Veterans Health Administration (VHA) regarding the claim for service connection for hypertension.  The requested opinion was subsequently promulgated in October 2017.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss had its onset in service.

2.  There is no competent evidence of record that shows that the Veteran has hypertension that had its onset during his active service, had its onset during an applicable presumptive period following his active service, developed secondary to a service-connected condition, or is otherwise related to his active service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was incurred in service.  38 U.S.C. §§ 1101, 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

2.  The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1101, 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Relevant Legal Criteria

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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

Service connection may also be granted through the application of statutory presumptions for chronic conditions.  See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. § 1101(3) (2012).  First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service and there is evidence that the claimant's symptoms have continued after discharge.  38 C.F.R. § 3.303(b).  In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service.  38 U.S.C. §§ 1112(a)(1), 1137 (2012); 38 C.F.R. § 3.307(a)(3) (2017).  If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  38 C.F.R. § 3.303(b).  The application of these presumptions operate to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted.

Additionally, a veteran who, during active service, served in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii).  If a veteran is presumed to have been exposed to an herbicide during such active service, the veteran shall be service connected for the diseases listed under 38 C.F.R. § 3.309(e) if the disability manifested to a degree of 10 percent or more at any time after service.  See 38 C.F.R. § 3.307(a)(6)(ii).  Where presumptive service connection is not warranted because the claimed disability is not listed under 38 C.F.R. § 3.309(e), the Board must consider whether there is competent evidence that shows that the claimed condition was actually caused by the Veteran's active service, including herbicide exposure.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Combee v. Brown, 34 F.3d 1039, 1042 (1994).

Additionally, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected.  38 C.F.R. § 3.310(a) (2017).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a).


II.  Bilateral Hearing Loss

For the purposes of the 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 (2017).  "The threshold for normal hearing is between 0 and 20 [decibels], and higher thresholds indicate some degree of hearing loss."  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Notably, "section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. . . .  Therefore, when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  (Citations omitted.)  Id.

Here, the evidence of record indicates that the Veteran currently has bilateral hearing loss for VA compensation purposes.  See 38 C.F.R. § 3.385; see also August 2013 Hearing Loss and Tinnitus Disability Benefits Questionnaire.

During his April 2017 Board hearing, the Veteran reported that he was exposed to loud noise during service and that his hearing problems had their onset in service.  Although the Veteran's service treatment records (STRs) do not show hearing loss or document reports of hearing problems during service, VA has already conceded the Veteran's in-service exposure to noise and the Board finds his report of in-service hearing problems competent and credible in light of the circumstances of his service, as his military occupational specialty was that of light weapons infantryman.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (Fed. Cir. 2007) ("the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted").

Thus, this appeal turns on whether there is a nexus between the Veteran's hearing loss and service.

In August 2013, a VA examiner opined that it is less likely than not that the Veteran's bilateral hearing loss is a result of his noise exposure as an infantryman.  The examiner noted that the Veteran has a conceded history of excessive noise exposure, but explained that not everyone who has such exposure will sustain permanent hearing loss or a significant threshold shift.  In addition, it was noted that the Veteran's hearing was within normal limits at or near the time of his discharge and a comparison of his June 1964 enlistment audiogram and May 1967 separation physical audiograms shows no significant shift in hearing during his period of service.  Significant change of hearing is commonly considered to be a decrease of hearing greater than a normal 10 decibel measurement variability.  Had the Veteran sustained hearing loss or a significant threshold shift, it should have been shown on his separation physical.  Thus, it is less likely than not that his current bilateral hearing loss is the result of his military service.  The current hearing loss is more likely than not due to post-service causes that are of unknown etiology.

The Board finds that the foregoing opinion is inadequate to the extent that the examiner used a showing of normal hearing upon separation to support his opinion that the Veteran's current hearing loss is not etiologically related to his period of active service.  As noted previously, service connection for a current hearing disability is not precluded where hearing was within normal limits at separation.  Hensley, 5 Vet. App. at 159-60.

Based on the foregoing, to include VA's acknowledgment that the Veteran was exposed to noise during service and the Veteran's competent and credible report of hearing loss that had onset during service and has continued since service, the Board resolves any doubt in the Veteran's favor and finds that service connection for bilateral hearing loss is warranted.

III.  Hypertension

During his April 2017 Board hearing, the Veteran testified that, in 2001, he was treated for hypertension following a heart attack.  He asserts that his diagnosed hypertension developed secondary to his in-service exposure to herbicide agents or his service-connected ischemic heart disease.

The evidence includes STRs that are negative for any complaint, report, or diagnosis of high blood pressure or hypertension, and a May 1967 Report of Medical History documents the Veteran's endorsement that he did not have a history of high or low blood pressure upon his separation from service.  Also of record is an October 2001 non-VA treatment record that documents a "history of hypertension," but does not note a specific date of onset.  Another record that is dated in March 2012 indicates that the Veteran had "hypertension for about 10 years" at that time.

In August 2013, a VA examiner reported that the Veteran was diagnosed with hypertension in 2001 and began taking medication to regulate his blood pressure during the same year.  The examiner opined that it is less likely than not that the Veteran's hypertension is due to or the result of his service-connected diabetes mellitus, as the medical literature supports the development of hypertension secondary to diabetes due to complications of diabetic nephropathy or the development of peripheral arteriosclerosis, but the Veteran has not demonstrated signs of these conditions.  Thus, his hypertension is not related to his diabetes.

In November 2013, an examiner opined that the Veteran's hypertension was not caused nor aggravated by his service-connected ischemic heart disease, as the current medical literature indicates that ischemic heart disease does not cause hypertension.

In October 2017, a VHA specialist also provided a medical opinion regarding the etiology of the Veteran's hypertension.  First, the specialist opined that it is less likely than not that the Veteran's hypertension is primarily due to his exposure to Agent Orange or to other herbicides.  The specialist reasoned that examination of the Veteran's STRs and his May 1967 separation examination verifies that the Veteran did not have hypertension during his time in the military, and thus, developed hypertension sometime after his separation from service.  According to the specialist, hypertension development is medically acknowledged to be multifactorial and the Mayo Clinic lists the following risk factors: age, being overweight, sleep apnea, kidney disease due to diabetes, alcoholism, Vitamin D deficiency, family history, and several other risk factors.  With regard to the foregoing, it was noted that the Veteran is older, chronically overweight, has sleep apnea, does not have diabetic-induced kidney disease, there is no knowledge of the Veteran's drinking habits, there is no knowledge of his Vitamin D levels, and there is no knowledge of the Veteran's family history of hypertension, respectively.  With regard to the Veteran's exposure to herbicide agents, the Veteran has one herbicide-related risk factor plus at least three risk factors that are not herbicide-related.

According to the specialist, the problem here is that we do not know the relative importance of any of the multiple risk factors impacting the Veteran.  If all the risk factors each had the same physiological/medical impact, then we would say that the preponderance of risk factors are certainly non-herbicide, by a factor of at least 3:1.  Therefore, in the absence of more information about the relative physiological impact of each risk factor, the specialist concluded that the aggregate impact of the Veteran's non-herbicide risk factors unequivocally outweighs the impact of the single risk factor created by his exposure to herbicide agents in Vietnam, and to conclude otherwise would be mere speculation.

With regard to the potential relationship between his hypertension and his service-connected diabetes mellitus and ischemic heart disease, the specialist opined that it is less likely than not that the Veteran's hypertension was caused or aggravated by either service-connected disability.  With regard to diabetes, it is a medical fact that in order for diabetes to cause hypertension, or to aggravate it, there must be diabetic kidney damage, as shown by the presence of excess albumin protein in the urine, which the Veteran does not have.  This situation could change in the future if he develops an out-of-range ratio or urinary microalbumin/creatinine, in which case he might in the future claim that his hypertension is aggravated by his diabetes, but at present, his urine laboratory results show a normal range.  Additionally, with regard to ischemic heart disease, although hypertension can cause or aggravate ischemic heart disease, it is a medical fact that this condition does not cause or aggravate hypertension and "[t]o do so would be to put the cart before the horse in the chain of causation."

The Board finds that the foregoing medical opinions, when reviewed together, are adequate because the clinicians reviewed the Veteran's relevant medical history and offered clear opinions regarding the relationship between the Veteran's hypertension and his service.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 124.

After careful review of the evidence, the Board finds that direct service connection is not warranted because the evidence fails to show that the Veteran's hypertension had its onset during service, and the Veteran has not asserted otherwise.  The Board also finds that although the chronic disease presumption applies to the present claim, the evidence does not show disabling hypertension within one year of his separation from active service or that he experienced symptoms of such a condition that continued from service until the present, as required.  Further, the competent evidence of record indicates that his hypertension was not otherwise caused by his exposure to herbicide agents during service nor was it caused or aggravated by a service-connected disability.

Notwithstanding statements offered by the Veteran in which he attributes his hypertension to his service, to include service-connected disability and his exposure to herbicide agents, the Board finds that he is not competent to provide an opinion as to the etiology of his hypertension.  Jandreau, 492 F.3d at 1376-77.  Thus, the there is no competent evidence of record that establishes that his hypertension is etiologically related to his active service.

For the reasons explained above, the Board concludes that the evidence is against finding that hypertension had its onset during his active service, had its onset during an applicable presumptive period, or is otherwise related to his active service.  The preponderance of evidence is therefore against a finding of service connection and the appeal must be denied as to this issue.  There is no reasonable doubt to be resolved.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for hypertension is denied.





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs