Citation Nr: 21004012 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-38 415 DATE: January 25, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for a leukemia/lymphoma disorder is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension did not originate in service or until years thereafter and is not otherwise etiologically related to service. 2. The Veteran’s headaches did not originate in service or until years thereafter and is not otherwise etiologically related to service. 3. The competent and credible evidence does not reflect a diagnosis of tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Army from August 1967 to July 1969, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decoration) the Army Commendation Medal and the Vietnam Service and Campaign Medals. These matters come before the Board of Veterans’ Appeals (Board) on appeal of December 2013 and June 2015 rating decisions. In October 2018, the Board remanded the claims for further development. During that time, service connection for a psychiatric disorder was granted in a March 2020 rating decision. As that decision represents a complete grant of benefits sought, that issue is no longer before the Board. The Board finds that the remand directives have been substantially complied with respect to the hypertension, headaches and tinnitus claims (with respect to these claims, the Board directed that VA treatment records be obtained, which has been completed) and therefore will proceed with a decision on these claims. Notably, the Veteran’s May 2016 substantive appeal for the decided issues indicated that the Veteran did not want a hearing before a member of the Board. In June 2019, the Veteran submitted a letter requesting a “conference with the Judge administering this case.” As the Veteran did not specifically state that he desired a hearing, the Board sent the Veteran a hearing clarification letter in November 2020. That letter informed the Veteran of his hearing options, and stated that, if the Veteran did not respond within 30 days of the issuance of the letter, the Board would use his previous selection to determine his choice of hearing. The Veteran did not respond to this letter. As the last, clear communication regarding the Veteran’s choice of a hearing is his May 2016 substantive appeal (in which the Veteran clearly indicated that he did not desire a hearing), the Board will move forward with a determination. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For certain chronic disorders service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran’s service treatment records are missing. With respect to the service connection issues on appeal, there is no allegation of relevant in-service treatment. However, in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). 1. Hypertension and Headaches The Veteran generally contends that service connection is warranted for hypertension and headaches; however, he has not alleged with any specificity how either of the claimed disabilities are related to active service. Post-service, VA treatment records of record show that the Veteran has been treated for hypertension and chronic headaches since 2000. However, the record does not contain any indication of a nexus between the Veteran’s current hypertension and/or a headache disability and his active duty service. Post-service treatment records show treatment for hypertension and for headaches many years after discharge from his service. Aside from the Veteran’s own statements, there is no evidence suggesting a link between his current hypertension and headache disabilities and his active duty service. As these issues are complex, conclusory generalized statements are not sufficient either to grant service connection or to trigger the need for a VA examination. Thus, service connection for hypertension and for headaches is denied. The Board notes that the Veteran was not afforded VA examinations for his claimed hypertension and headaches disorders; however, such examinations are not necessary in this case because the evidence does not establish an in-service event, injury or disease associated with the claimed disorders. 2. Tinnitus In his original August 2014 VA claim form, the Veteran did not provide any additional information regarding type of exposure, event or injury with regard to his tinnitus claim. The Veteran has not submitted any statements, lay or otherwise, to indicate that he has a current diagnosis of tinnitus. The Veteran’s claims file includes various medical records and treatment information, although nothing indicates that the Veteran has a confirmed diagnosis of a current tinnitus disability. As such, the Board finds that the first criteria for entitlement to service connection for tinnitus has not been satisfied, as there is no present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, the Board notes that the Veteran is competent to self-diagnosis tinnitus, however aside from his initial claim for entitlement to service connection, the Veteran has not actually self-reported that he has a current diagnosis of tinnitus, or symptoms related to tinnitus, such as ringing in the ears. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Therefore, in the absence of competent evidence showing a current diagnosis of tinnitus, it is unnecessary to address the remaining elements of the claim for service connection. Service connection for tinnitus must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a leukemia/lymphoma disorder is remanded. The Veteran claimed service connection for “acute myelogenous leukemia” in April 2013. In VA treatment records, however, the Veteran reported a history of non-Hodgkin’s lymphoma which is a presumptive disease under 38 C.F.R. § 3.309(e). In a July 2019 opinion, a VA examiner clarified that the Veteran was diagnosed with acute myeloid leukemia; thus, presumptive service connection is not warranted under 38 C.F.R. § 3.309(e). However, service connection may be established on a direct service connection basis, to include as due to in-service herbicide exposure. In this case, the examiner opined that “there remains no clear evidence linking Agent Orange exposure to the Veteran’s development of acute myeloid leukemia.” The examiner did not use the correct legal standard of “at least as likely as not” in the medical opinion. Therefore, a remand for clarification is necessary. The matter is REMANDED for the following action: Obtain an addendum medical opinion from a medical professional with appropriate expertise regarding the claim. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s acute myeloid leukemia is related to his active service, or is caused by or aggravated by military service, to include exposure to Agent Orange. 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.