Citation Nr: 21067356 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-28 800A DATE: November 4, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to a compensable evaluation for isolated systolic hypertension is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for right knee lateral instability is remanded. FINDINGS OF FACT 1. The Veteran's current right ear hearing loss manifested during a period of active service. 2. The Veteran's service-connected hypertension is not manifested by diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more with required continuous medication for control. CONCLUSIONS OF LAW 1. Right ear hearing loss was incurred in active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for a compensable evaluation for isolated systolic hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to August 1982 and from December 1986 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2018. A transcript has been associated with the claims file. The Board remanded the case for additional development in July 2018. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system (including sensorineural hearing loss) are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system (including sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purpose 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 considering the evidence under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for right ear hearing loss. The Veteran's complete service treatment records for his first period of active service from 1979 to 1982 are unavailable. During an October 1986 enlistment examination for his second period of service, the Veteran's ears and drums were found to be normal, and he denied having any history of hearing loss. October 1986 and July 1992 audiograms did not reveal right ear hearing loss as defined under 38 C.F.R. § 3.385. A June 1994 separation examination also found his ears and drums to be normal, and the Veteran indicated that he did not know if he had past or present hearing loss at that time. Nevertheless, the June 1994 separation audiogram revealed a puretone threshold of 40 decibels at 4000 Hertz for the right ear. Therefore, the separation examination shows that he had right ear hearing loss for VA purposes at that time. See 38 C.F.R. § 3.385. An October 2013 VA examiner noted that the Veteran had preexisting hearing loss in both ears prior to his period of service that began in 1986. The examiner also noted that preexisting hearing loss in both ears was aggravated beyond its normal progression during service, but despite noting this finding, he also found that there were no significant threshold shifts noted with regard to the right ear from 1986 to 1990. Such findings appear internally inconsistent. Moreover, the Board notes that the presumption of soundness applies in this case. See McKinney v. McDonald, 28 Vet. App. 15, 29 (2016) (holding that hearing loss that does not meet the requirements of 3.385 is not a "defect" because it is not considered a disability for VA purposes). In a November 2019 negative nexus opinion, the examiner also relied, in part, upon finding that the Veteran had right ear hearing loss that preexisted his second period of service and discussed delayed-onset hearing loss. However, as previously discussed, the October 1986 enlistment examination did not show right ear hearing loss disability for VA purposes, and the June 1994 separation examination subsequently showed that he did have right ear hearing loss (40 decibels at 4000 Hertz). Based on the foregoing, the Board finds that the Veteran's right ear hearing loss manifested in service. Therefore, service connection is warranted. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's isolated systolic hypertension is currently assigned a noncompensable evaluation, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent evaluation is warranted for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation is assigned for diastolic pressure predominantly 110 or more; or, systolic pressure predominantly 200 or more. A 40 percent evaluation is contemplated for diastolic pressure predominantly 120 or more. A 60 percent evaluation is warranted for diastolic pressure predominantly 130 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for his service-connected isolated systolic hypertension. The Veteran's treatment records document numerous blood pressure readings since his initial diagnosis. He had an isolated blood pressure reading of 136/91 in 2014 and diastolic blood pressure of 100 in June 2013. Otherwise, his blood pressure readings have been normal. See, e.g., October 2017 private treatment record (noting that his outside blood pressure readings have been normal); November 2017 VA examination report (noting there is no history of diastolic blood pressure predominantly 100 or more); August 2018 VA treatment record (noting blood pressure of 103/72 and 106/74 and that his hypertension is controlled with medication); January 2019 VA treatment record (noting his systolic blood pressure is in the 100s and diastolic blood pressure is in the 70s); July 2020 VA treatment record (reporting systolic blood pressure readings less than 130 and diastolic less than 80). In addition, a November 2017 VA examiner documented blood pressure readings of 133/86, 129/93, and 125/87. The Veteran's blood pressure readings were also recorded as 122/76, 120/78, and 122/78 during an October 2019 VA examination. There is no evidence to show that the Veteran's diastolic blood pressure is predominantly 100 or higher or that his systolic blood pressure is predominantly 160 or higher. In addition, the evidence shows that the Veteran has been prescribed continuous medication for control, but it does not document a history of diastolic pressure predominantly 100 or more even before he was prescribed medication. In June 1994, his blood pressure was 130/90, and a five-day blood pressure check was recommended. Those readings were 128/84, 132/84, 124/82, 142/98, and 130/84. See June and July 1994 service treatment records. The November 2017 VA examiner also noted that the Veteran had been prescribed medication, but found that he did not have a history of diastolic blood pressure elevation to predominantly 100 or more. In addition, the October 2019 VA examiner noted that he was diagnosed with high blood pressure in 1994 and started on lisinopril. Although he noted that the Veteran did have a diastolic elevation of 100 documented in June 2013, the examiner clarified in an August 2020 addendum that he does not have a history of elevated diastolic blood pressure of 100 or higher. Moreover, the November 2017 VA examiner commented that that the Veteran's pulse rate indicated that excitement that can account for any isolated elevated blood pressure and that there was no functional impact from his isolated systolic hypertension. The October 2019 VA examiner also found that the Veteran's blood pressure has been well controlled and that he denied having any numbness or blurry vision. He further stated that there was no functional impact from the Veteran's isolated systolic hypertension and that a physical examination was normal. The Board acknowledges the contention of the Veteran and his representative that he is entitled to a compensable evaluation because his blood pressure would not be adequately controlled without continuous medication. See October 2020 appellate brief. Although the Veteran has been prescribed medicine to treat his hypertension, the Board also notes that the rating criteria for hypertension specifically contemplate the use of medication to ameliorate symptoms and that a higher rating may not be assigned based solely on the fact that the Veteran uses medication to treat his symptoms. Cf. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), ("[a]bsent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication...the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication."). Indeed, in McCarroll v. McDonald, 28 Vet. App. 267 (2016), the Court specifically held that the Board did not err in failing to discount the ameliorative effects of blood pressure medication, as the plain language of Diagnostic Code 7101 contemplates the effects of medications. Further, despite the Veteran's use of medications, as discussed above, the evidence does not show that he has a history of diastolic pressure predominantly 100 or more to warrant a 10 percent rating. Based on the foregoing, the Board finds that the Veteran has not been shown to meet the criteria for a compensable evaluation for hypertension. Therefore, the Board concludes that the preponderance of the evidence weighs against the claim and that an increased evaluation is not warranted. The Veteran and his representative have not raised any other issues with regard to the increased evaluation claim, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Upon review, the Board finds that additional development is needed prior to adjudication of the issue of entitlement to an increased evaluation for right knee lateral instability. The Veteran was most recently afforded a VA examination in October 2019 in connection with the claim. The examiner found no joint instability on examination and noted that an MRI of the right knee did not show any lateral ligament tear or malformation. However, the examiner did not specifically address the November 2013 VA examiner's findings or the Veteran's lay statements, as directed in the prior remand. See May 2018 hearing transcript (Veteran reported that he wore knee braces and used a cane for assistance specifically because of his right knee instability); July and August 2020 VA treatment records (Veteran reported that he has slipped and fallen several times getting in and out of the shower the last six months and requesting a walk-in shower). The Board further notes that the Veteran's right knee instability is currently evaluated under Diagnostic Codes 5010-5257. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). For these reasons, the Board finds that a VA examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected lateral instability of the right knee. The matter is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected right knee disability that are not already of records. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected right knee lateral instability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the right knee instability under the rating criteria. In so doing, the examiner should address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. In addition, the examiner should address whether the Veteran has a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability and whether a medical provider has prescribed an assistive device (e.g., cane(s), crutch(es), walker) and/or bracing for ambulation. It should be noted whether the condition has been repaired, unrepaired, or has a failed repair. The examiner should further indicate whether the Veteran has patellar instability involving the patellofemoral complex with recurrent instability after surgical repair that has required a prescription from a medical provider for a brace, cane, and/or walker. It should be noted that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). If the examiner determines that the Veteran does not have recurrent subluxation, lateral instability, or patellar instability, he or she should provide an explanation and address the finding of slight right knee instability November 2013 VA examination report, as well as the Veteran's own statements and use of a brace and cane. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.