Citation Nr: 21004370 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-18 169 DATE: January 26, 2021 ORDER The application to reopen the previously denied claim of service connection for bilateral hearing loss disability is granted. The application to reopen the previously denied claim of service connection for hypertension is granted. Service connection for hypertension is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to a disability rating greater than 10 percent for patella chondromalacia of right knee is remanded. Entitlement to a disability rating greater than 10 percent for patella chondromalacia of left knee is remanded. FINDINGS OF FACT 1. In a May 2012 rating decision, the RO confirmed and continued a denial of service connection for bilateral hearing loss; the underlying June 1998 was based on a finding of no hearing loss disability for VA purposes. Evidence submitted since then relates to an unestablished fact necessary to substantiate the claim, and has not been previously considered. 2. In a March 2012 rating decision, the RO declined to reopen a previously denied claim of service connection for hypertension; the underlying June 1998 decision was based on a finding of no current disability, to include in the year following service. Additional evidence submitted since then relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran’s hypertension is attributable to service. CONCLUSIONS OF LAW 1. The March 2012 and May 2012 rating decisions regarding the claims for service connection for bilateral hearing loss disability and for hypertension are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence submitted since then is new and material; and the claims for service connection for hearing loss disability and for hypertension are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Hypertension was incurred in wartime active service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1990 to October 1997, including service in the Southwest Asia theater of military operations (SWA) during the Persian Gulf War. He timely appealed these matters from an August 2014 rating decision. In July 2020, the Veteran testified during a virtual hearing before the undersigned; a transcript of the hearing is associated with the claims file. Reopening Irrespective of the RO’s action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) (“Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened….”) VA may reopen and review claims that have been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims. The RO originally denied service connection for bilateral hearing loss disability and for hypertension in June 1998 based on the absence of evidence showing current disability, to include manifestation of disability to a compensable degree within the first year after service. In March 2012 the RO declined to reopen a claim with regard to hypertension, and in May 2012, the RO denied service connection for hearing loss. In October 2013, the Veteran submitted claims to reopen and provided details with regard to his current difficulties hearing, including testimony that service connection already had been granted for tinnitus. Evidence already of record included an impression of mild sensorineural hearing loss with associated tinnitus. Reopening of the previously denied claim is appropriate. The Veteran also testified that he currently took medication for hypertension, and testified that his panic attacks occurred when his blood pressure was too high. Service connection for panic disorder already had been granted. Given the Veteran’s testimony, reopening of the previously denied claim is appropriate. Service Connection for Hypertension Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as hypertension, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In this case, the Veteran was presumed sound at service entry. Clinical evaluation at entry in August 1990 was normal, and no disability was recorded. His blood pressure reading at entry was 118/88. Nor is there medical evidence of any disability prior to active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran contends that service connection for hypertension is warranted on the basis that he has longstanding hypertension and currently took medication for hypertension. He testified that he had panic attacks when his blood pressure was elevated. As noted above, service connection had been granted for panic disorder. The Board finds the Veteran’s testimony to be credible and persuasive. In this case, service treatment records showed blood pressure readings of 132/90 in July 1992; 118/64 and 125/74 in December 1994; 138/90 in March 1995;140/92 in January 1996; 122/88 in March 1996; 126/90 in April 1996; 130/60 in June 1996; 138/90 in October 1996; and 117/74 in July 1997. No separation examination is of record. The term “hypertension” means that the diastolic blood pressure is predominantly 90 millimeters or greater. “Isolated systolic hypertension” means that the systolic blood pressure is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Here, elevated blood pressure was recorded in active service. The overall evidence supports a finding of diastolic readings predominantly at 90 millimeters or greater, at least since March 1995. The Veteran underwent a VA examination within a few months after his separation from active service. A January 1998 VA examination report revealed no history of hypertension. Evaluation also revealed a blood pressure reading of 120/94. The examiner noted mild elevation of diastolic blood pressure, and recommended further blood pressure readings to confirm the presence of hypertension. In July 2020, the Veteran testified that he currently took medication daily to control his blood pressure. Following further review, the Board finds that the Veteran’s elevated blood pressure both during active service and since then demonstrates chronicity. In this case, the evidence of record showed elevated blood pressure both during service and after service; and such elevated blood pressure was sufficient enough for VA examiner in January 1998 to recommend additional blood pressure readings to confirm the presence of hypertension. Moreover, the Veteran is competent to report elevated blood pressure readings, even if he cannot diagnose hypertension. The blood pressure reading in January 1998 is consistent with the evidence of record revealing predominantly a diastolic blood pressure of 90 millimeters or greater, demonstrating chronicity following service. Accordingly, the January 1998 VA examination report is given a high degree of probative value. The evidence of record supports the claim, and service connection for hypertension is warranted. REASONS FOR REMAND Bilateral Hearing Loss Disability The Veteran has a history of hazardous noise exposure in active service, working in a mechanized unit with tanks and artillery and light infantry. Highly probable acoustic trauma is established. In July 2020, the Veteran testified that he just cannot hear, particularly when on conference calls or when in conversation in a crowded area. He testified that he had difficulty distinguishing sound, and the tinnitus was always present. In light of competent and credible reports of worsening of hearing since the most recent examination, remand for a new examination is required. Erectile Dysfunction The Veteran contends that service connection is warranted for erectile dysfunction due to exposure to environmental hazards in the Gulf War. He was exposed to bunker/munition destructions, burn pits, and oil fires. He also noted possible exposure to a nerve agent. In July 2020, the Veteran testified that he took several medications for his service-connected disabilities; and that erectile dysfunction was a known side effect. Consequently, a remand is required to provide the Veteran with examination or medical review in order to comply with VA’s duty to assist. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Patella Chondromalacia of Right Knee and Left Knee The Veteran contends that increased disability ratings are warranted for patella chondromalacia of each knee, currently rated 10 percent disabling apiece. In July 2020, he testified that he had difficulty going up and down stairs and that he really could not fully straighten his legs. He testified that it was painful to kneel and that he had difficulty tying shoes. His knees locked at times, causing instability. He testified that there was fluid within the meniscus and that he underwent physical therapy. Unfortunately, the current record is inadequate for determining whether increased ratings are warranted. The most recent examination was in August 2014, and findings regarding functional impact of the Veteran’s patella chondromalacia of each knee are sparse. VA treatment records include slightly more detail, and those indicate a potential worsening. Remand for examination is therefore required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2017 to the present. 2. Schedule a VA audio examination; the claims file must be reviewed in conjunction with the examination. For any identified hearing loss disability, the examiner must opine whether such is at least as likely as not caused by established in-service noise exposure. The examiner should note service connection for tinnitus has been granted, and full credit must be given to lay reports of hearing problem history. A full and complete rationale for opinions expressed is required. 3. Schedule a VA genitourinary examination to determine the nature and etiology of the Veteran’s current erectile dysfunction. The claims file must be available and reviewed in such regard. Specifically, the examiner must opine as to whether erectile dysfunction is at least as likely as not related to an in-service injury or disease, including exposure to environmental hazards in the Gulf War; and to include as a result of medications taken for treatment of service-connected disabilities. A full and complete rationale for opinions expressed is required. 4. Schedule the Veteran for a VA joints/knee examination. Describe in full all disabilities and functional impairments of the right and left knees, to include with repetitive motion and on flare-ups. 5. Then, readjudicate the claims on appeal. If any benefits sought remain denied, issue a supplemental statement of the case and, after appropriate time for response, return the appeal to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.