Citation Nr: 21066520 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-23 131A DATE: November 1, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes is denied. REMANDED Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's diabetes was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107; 38C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107; 38C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to January 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in April 2020 for further development and they are now back before the Board. The Veteran requested a hearing in his appeal to the Board, and a hearing was scheduled to occur in October 2021. In September 2021, the Veteran submitted a letter requesting that the Board cancel the hearing. An October 2021 record in the claims file also indicates that the Veteran's representative verbally told a VA Appeals Intake Specialist that the Veteran wanted to cancel his request for a Board hearing. The Board will therefore adjudicate this matter based upon the evidence in the claims file. 1. Entitlement to service connection for hypertension is denied. The Veteran claims entitlement to service connection for hypertension. The Veteran claims that he developed hypertension during service and has been treated with hypertension since service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases, such as hypertension, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Under VA rating criteria, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. A diagnosis must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. The Veteran has a diagnosis for hypertension. While the Veteran contends that he developed hypertension during service, the Board finds that the Veteran's hypertension did not begin during service or within the applicable presumptive period and is not otherwise related to his active duty. In his December 2017 Notice of Disagreement, the Veteran has alleged that his service treatment records (STRs) were incomplete. In August 2017, the RO sent a letter stating that his STRs could not be located and that all efforts to obtain the records have been exhausted. Additional documents in the claims file indicate that the RO has made several attempts to obtain the Veteran's STRs. In cases where a veteran's service treatment records are damaged or destroyed through no fault of his own, there is a heightened duty to assist him in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran was informed of the RO's inability to obtain the records in an August 2017 letter which documented the RO's multiple attempts to obtain the STRs as well as any responses received. The Veteran responded and submitted several STRs, including his August 1974 entrance examination and September 1994 retirement examination, along with several other examinations and treatment records. The Board finds that VA has complied with its heightened duty to assist as it has made several attempts to obtain the Veteran's STRs. The Board finds that an additional remand would not benefit the Veteran, as the Veteran has submitted copies of his entrance and separation examinations, along with the Reports of Medical History which accompany each examination and were contemporaneously completed by the Veteran in addition to several other treatment records. In this case, since the Veteran claims to have suffered from his disabilities during service, even if the STRs are incomplete, the most probative STRs are in the claims file for review, and the Board may proceed with adjudicating the Veteran's claims. The Veteran reported that he had hypertension since service. However, the Veteran's available service treatment records (STRs) do not show diastolic blood pressure of predominantly 90 mm or greater, or systolic blood pressure of predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Instead, the Veteran answered in the negative for any complaints of high or low blood pressure in the Report of Medical History accompanying his August 1974 entrance examination and September 1994 retirement examination as well as an August 1984 examination. The Board finds that the Veteran's statement that he had hypertension during service is not credible as it is contradicted by the STRs of record, including his own statement as recorded in his September 1994 retirement examination and corresponding Report of Medical History which do not report treatment or diagnosis for hypertension during service. The September 1994 physical examination report also gives blood pressure readings within the normal range used by VA, mentioned above, consistent with the Veteran's contemporaneous report that he did not have high or low blood pressure. Therefore, the Board finds that the most probative evidence of record indicates that the Veteran did not have hypertension during service and was not diagnosed with or treated for hypertension during service. The Veteran's post-service VA treatment records show that the Veteran had hypertension and was treated with medication. A December 2011 private medical record indicates that the Veteran was diagnosed with hypertension in 2010 and was treated with medication, while an April 2019 VA treatment record indicates that the Veteran was treated for hypertension with a different medication. Although the Board is remanding the Veteran's claim for entitlement to service connection for hearing loss, the RO is only instructed to obtain outstanding audiograms which would not assist the Veteran in substantiating his claim for entitlement to service connection for hypertension. Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019). To the extent that the Veteran contends that he was diagnosed or treated for hypertension within one year of service, the Board also finds that statement to be not credible as it is contradicted by the Veteran's post-service treatment records of record indicating that he was not diagnosed with hypertension until 2010. The Veteran underwent a VA examination in October 2020 for his hypertension. The VA examiner reviewed the Veteran's STRs and post-service medical records and opined that the Veteran was not diagnosed with hypertension until 2010, approximately 15 years since he retired from active duty. The VA examiner further opined that the Veteran's hypertension is less likely than not related to his active duty, to include as due to wear and tear on the body from his military training and duties during service. The examiner's rationale was that the Veteran did not have hypertension during or upon separation from service, and, considering the risk factors of developing hypertension and an approximate 15-year length of time between the Veteran's separation from service and his diagnosis for hypertension, it was less likely than not that the Veteran's hypertension was related to his active duty. Although the Veteran believes that his hypertension is related to his active duty, the Veteran is not competent to provide a nexus opinion between his service and his hypertension. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Veteran has also not provided any statements from any medical professionals or other competent evidence indicating that there is a link between his hypertension and service. The Board finds that the competent and credible evidence of record does not show that the Veteran had any symptoms of hypertension or was diagnosed with hypertension during service or within one year of his service. Therefore, presumptive service connection is not warranted for this disability. The Board also finds that the competent evidence of record does not show that the Veteran's hypertension is otherwise related to his active duty. The competent medical evidence of record, including the Veteran's post-service treatment records and the October 2020 VA examination report indicate that the Veteran's hypertension was diagnosed in 2010, approximately 15 years after his separation from service and the October 2020 VA examiner opined that the Veteran's hypertension was less likely than not related to service. There is no competent medical evidence indicating that there is a nexus between the Veteran's hypertension and his service. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for hypertension and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for diabetes is denied. The Veteran claims entitlement to service connection for diabetes. The Veteran claims that he developed diabetes during service and has been treated with hypertension since service. The Board finds that the Veteran has a current diagnosis for diabetes. Diabetes is a chronic disability. For the reasons that follow, the Board finds that the Veteran's diabetes did not begin during service or within the applicable presumptive period and is not otherwise related to his active duty. As discussed above, although the STRs were unavailable when VA requested them, the Board finds that VA's heightened duty to assist has been satisfied and that an additional remand would not benefit the Veteran. Additionally, several STRs, including the August 1974 entrance examination and September 1994 retirement examination, along with several other examinations and treatment records, have been submitted by the Veteran and are in the claims file for review. The Veteran's September 1994 retirement examination shows that the Veteran's endocrine system is normal, does not note a diagnosis or treatment for diabetes or high blood sugar, and that the Veteran's urinalysis was negative for glucose. The Board finds that the Veteran's statement that he had diabetes during service is not credible as it is contradicted by the STRs of record, including his September 1994 retirement examination and corresponding Report of Medical History which do not report treatment or diagnosis for diabetes during service. Therefore, the Board finds that the most probative evidence of record indicates that the Veteran did not have diabetes during service and was not diagnosed with or treated for diabetes during service. The Veteran's post-service medical evidence shows that the Veteran was diagnosed with diabetes in 2011 and was treated with medication, which contradicts the Veteran's assertion that he received continuous treatment for diabetes since service. Therefore, the Board finds the Veteran's assertion that he had diabetes during or after service is not credible, and that the most probative evidence of record indicates that the Veteran did not have any symptoms of diabetes during service or within one year of service and was not diagnosed with or treated for diabetes during service or within one year of service. To the extent that the Veteran contends that he was diagnosed or treated for hypertension within one year of service, the Board also finds that statement to be not credible as it is contradicted by the Veteran's post-service treatment records of record indicating that he was not diagnosed with diabetes until 2011. Although the Board is remanding the Veteran's claim for entitlement to service connection for hearing loss, the RO is only instructed to obtain outstanding audiograms which would not assist the Veteran in substantiating his claim for entitlement to service connection for diabetes. Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019). To the extent that the Veteran contends that he was diagnosed or treated for hypertension within one year of service, the Board also finds that statement to be not credible as it is contradicted by the Veteran's post-service treatment records of record indicating that he was not diagnosed with hypertension until 2011. The Veteran underwent a VA examination in October 2020 for his diabetes. The VA examiner reviewed the Veteran's STRs and post-service medical records and opined that the Veteran was not diagnosed with diabetes until 2011, approximately 16 years after the Veteran separated from active duty. The VA examiner's rationale was that the Veteran's urinalysis and glucose tests were within normal limits at separation, and that the Veteran was not diagnosed with diabetes or pre-diabetes at separation from service. The examiner further noted that the Veteran has a family history of diabetes, and that individuals with a family history of diabetes have an increased likelihood of developing diabetes. The examiner further explained that body mass index, waist circumference, diet, physical activity, and smoking are also strong risk factors for diabetes, and that adherence to military height/weight requirements as well as performance of routine physical readiness training would be protective under normal circumstances with respect to the development of diabetes. Consideration of those factors, in addition to the approximate 16-year length of time between the Veteran's separation from service and his diagnosis, supported the VA examiner's opinion that it was less likely than not that the Veteran's diabetes was incurred in or is otherwise related to the Veteran's active duty. Although the Veteran believes that his diabetes is related to his active duty service, the Veteran is not competent to provide a nexus opinion between his service and his diabetes. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau, 491 F.3d at 1377 n.4. The Veteran has also not provided any statements from any medical professionals or other competent evidence indicating that there is a link between his diabetes and service. The Board finds that the competent medical evidence of record does not show that the Veteran had any symptoms of diabetes or was diagnosed with diabetes during service or within one year of his service. Therefore, presumptive service connection is not warranted for this disability. The Board also finds that the competent medical evidence of record does not show that the Veteran's diabetes is otherwise related to his active duty. The competent medical evidence of record, including the Veteran's post-service treatment records and the October 2020 VA examination report indicate that the Veteran's diabetes was diagnosed in 2011, approximately 16 years after his separation from service and the October 2020 VA examiner opined that the Veteran's diabetes was less likely than not related to service. There is no competent medical evidence indicating that there is a nexus between the Veteran's diabetes and his service. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for diabetes the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for hearing loss is remanded. The Veteran claimed entitlement to service connection for hearing loss. The RO denied the Veteran's claim because he did not have a hearing loss disability which conforms with the requirements of 38 C.F.R. § 3.385. The Veteran underwent VA examinations in July 2017 and October 2020. At the July 2017 VA examination the Veteran was not diagnosed with hearing loss, and at the October 2020 VA examination, the examiner opined that the audiology test results were not valid for rating purposes as there was a large discrepancy between the speech recognition threshold and pure tone average. However, the Veteran's VA treatment records show that the Veteran was fitted for hearing aids in April 2020 and underwent an audiogram in March 2020, although that audiogram does not appear to be associated with the VA treatment records. A November 2019 record also shows that Assured Audiology conducted an audiogram. A letter from the audiologist accompanying the results of the Assured Audiology November 2019 audiogram shows that the Veteran had mild to moderate to moderately severe sensorineural hearing loss, and that the Veteran reported an extensive history of noise exposure. A VA treatment record also indicates that the Veteran underwent audiometric testing by Bright Audiology in November 2019. A March 2020 VA treatment note indicated that the Veteran had sensorineural hearing loss bilaterally. As the October 2020 VA examiner did not address the VA treatment records indicating that the Veteran has a diagnosis of hearing loss, or the November 2019 audiogram from Assured Audiology when opining that the Veteran does not have a diagnosis for hearing loss, the October 2020 examiner's opinion is inadequate, and an addendum opinion should be requested. In addition, the examiner should review and address all in-service audiograms in forming the opinion. Also, the RO should attempt to obtain copies of any outstanding audiograms, including the March 2020 audiogram, and attempt to obtain any records from any private audiologist, such as Bright Audiology, who may have treated the Veteran. The matter is REMANDED for the following action: 1. Obtain copies of any audiograms conducted by VA treatment providers or VA Community Care providers, including the March 2020 audiogram as well as any audiograms conducted by Bright Audiology, Assured Audiology, or any other VA Community Care provider. 2. Ask the Veteran to complete a VA Form 21-4142 for any audiologist who examined him or treated his hearing loss. Make two requests for the authorized records from any audiologist identified by the Veteran, unless it is clear after the first request that a second request would be futile. 3. Obtain an addendum opinion from a qualified clinician regarding the Veteran's hearing loss. The examiner must opine the following: 1) Does the Veteran have a disability for hearing loss for VA purposes? 2) If so, is it at least as likely as not that the Veteran's hearing loss either began during service or within one year of service or is otherwise related to his active duty service. The examiner must address all in-service and post-service audiograms in formulating the opinion. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, Associate 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.