Citation Nr: 21066852 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-42 256 DATE: November 2, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's current hypertension was not incurred in, or aggravated by his military service. 2. The Veteran's diabetes mellitus type II was not incurred in, or aggravated by his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307. 2. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1977 to February 1980 and from November 1980 to July 1985. SERVICE CONNECTION 1. Entitlement to service connection for hypertension The Veteran contends that he developed hypertension as a result of active service, to include possible development of hypertension within one year of separation from active service. After a thorough review of the evidence of record, the Board finds that entitlement to service connection for hypertension is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As a general matter, service connection requires competent evidence showing: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for certain chronic diseases, such as hypertension, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more disabling within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. In short, when considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. 38 C.F.R. § 3.159(a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must assess the competence and credibility of lay statements. Barr, 21 Vet. App. at 308. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Veteran's medical records document a diagnosis of hypertension during the appeal period. Therefore, the Veteran meets the first element of the Shedden criteria. The Veteran's service treatment records do not contain complaints of or treatment for high blood pressure. The Veteran's medical examination in September 1976 shows a reading of 132/76; November 1980 shows a reading of 130/68; and January 1985 shows a reading of 120/64. Subsequent medical treatment records do not support that the Veteran was diagnosed within one year of separation from active service. A CAPRI record dated April 2005 shows a blood pressure reading of 132/84 and on the corresponding pre-populated list of diagnosed conditions, the condition of high blood pressure was not marked. At the June 2021 Board hearing, the Veteran stated that he had been taking blood pressure medication since 1990, which is not supported by the medical evidence, of record, and is still more than one year past the date of separation from active service. For reference, the rating schedule under Diagnostic Code 7101 relating to hypertension states that, "the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." 38 C.F.R. § 4.104, DC 7101, Note (1). The Board has not overlooked the Veteran's lay statements with respect to his hypertension claim. While the Veteran is competent to describe symptoms related to high blood pressure, diagnosing the condition and whether it relates to his service is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, n.4 (Fed. Cir. 2007); see also Barr, 21 Vet. App. at 309. Such a determination must be made by a medical professional with appropriate expertise. Id. Because the Veteran's statements are not based on medical training and/or experience, his assertions that his hypertension developed during or within one year of separation from service, or are otherwise related to service, do not constitute competent evidence and are therefore outweighed by the medical evidence of record. See Layno, 6 Vet. App. at 470-71. As there is no indication that the Veteran has a present disability stemming from active duty service or secondary to service-connected disability, an examination is not required for the purposes of adjudication. While the McLendon factors set a low bar to trigger an examination pursuant to VA's duty to assist, an examination is not required every time a claim is filed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination is only required when necessary to decide a claim. Despite the permissive language of VA's duty to assist, the Court has stated that "[i]f Congress had wanted the Secretary to automatically provide an examination on all possible theories, then section 5103A would not read the way it does." Robinson v. Peake, 21 Vet. App. 545, 553 (2008). See also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a claimant's mere "conclusory generalized statement" that an in-service illness caused his current disability did not trigger VA's requirement to obtain an examination, and it rejected the theory "that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues"). As the most probative and persuasive evidence is against finding that the Veteran's current hypertension developed within one year of active service, or is otherwise related to active service, entitlement to service connection is denied. As the preponderance of the evidence is against the Veteran's hypertension claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for diabetes mellitus The Veteran contends that he developed diabetes mellitus as a result of active service, to include possible exposure to herbicide agents during active service. After a thorough review of the evidence of record, the Board finds that entitlement to service connection for diabetes mellitus is not warranted. The Veteran's medical records document a diagnosis of diabetes mellitus during the appeal period. Therefore, the Veteran meets the first element of the Shedden criteria. The Veteran's service treatment records do not contain complaints of or treatment for diabetes. A CAPRI note dated April 2005 includes a pre-populated list of current diagnosed symptoms, and diabetes was not marked. A CAPRI note dated June 25, 2013 stated, "patient is not diabetic." January 2016 CAPRI records show that the Veteran had a prescription to treat diabetes. The Board has not overlooked the Veteran's lay statements with respect to his diabetes claim. The Veteran stated during the June 2021 Board hearing that he was exposed to herbicide agents during active service. The Veteran has not provided documentation or supporting information as to this contention regarding herbicide agents. The Veteran also stated that he was diagnosed with diabetes in 2005. While the Veteran is competent to describe symptoms related to diabetes, diagnosing the condition and whether it relates to his service or to other factors such as herbicide agents, is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, n.4 (Fed. Cir. 2007); see also Barr, 21 Vet. App. at 309. Such a determination must be made by a medical professional with appropriate expertise. Id. Because the Veteran's statements are not based on medical training and/or experience, his assertions that his diabetes mellitus developed as a result of active service or due to exposure to herbicide agents, or are otherwise related to service, do not constitute competent evidence and are therefore outweighed by the medical evidence of record. See Layno, 6 Vet. App. at 470-71. VA laws and regulations provide that, if a veteran was exposed to certain herbicidal agents such as Agent Orange during service, certain listed diseases, such as diabetes mellitus type II, are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran did not serve until 1977. However, consideration for direct service connection based on herbicide exposure on a non-presumptive basis is still available for those conditions listed as presumptive. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service records do not document that he was otherwise exposed to herbicide agents. The Veteran has not otherwise provided detailed information or documentation as to potential herbicide agent exposure during active service beyond a generalized statement of exposure. As there is no indication that the Veteran has a present disability stemming from active duty service or secondary to service-connected disability, an examination is not required for the purposes of adjudication. While the McLendon factors set a low bar to trigger an examination pursuant to VA's duty to assist, an examination is not required every time a claim is filed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination is only required when necessary to decide a claim. Despite the permissive language of VA's duty to assist, the Court has stated that "[i]f Congress had wanted the Secretary to automatically provide an examination on all possible theories, then section 5103A would not read the way it does." Robinson v. Peake, 21 Vet. App. 545, 553 (2008). See also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a claimant's mere "conclusory generalized statement" that an in-service illness caused his current disability did not trigger VA's requirement to obtain an examination, and it rejected the theory "that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues"). As the most probative and persuasive evidence is against finding that the Veteran's current diabetes mellitus type II is related to service, or that the Veteran was exposed to herbicide agents during active service, entitlement to service connection is denied. As the preponderance of the evidence is against the Veteran's diabetes mellitus claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. The Veteran previously had a VA examination for hearing loss and the examiner in that April 2018 report opined that the Veteran's right ear hearing loss was at least as likely as not related to hazardous noise exposure during active service. However, during the examination, the hearing loss levels recorded did not rise to the level of disability under VA regulations. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of 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, 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. In the commentary for the examination, the examiner wrote that there were "some inconsistencies in the testing," without elaboration. The Veteran also requested, through his authorized representative, at the Board hearing in June 2021 to be reexamined for hearing loss. The RO should request a new audiological evaluation. The matter is REMANDED for the following action: 1. Schedule the Veteran for a new VA audiological examination. The examiner is asked to review the Veteran's medical records to include the April 2018 VA audiological examination as part of the process. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.