Citation Nr: 21068362 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-19 307 DATE: November 10, 2021 ORDER Entitlement to service connection for tinnitus is granted. New and material evidence having been received to reopen the claim of service connection for hypertension, to that extent only, the appeal is granted. Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for chronic headaches, to include on a secondary basis, is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus is related to his in-service injury, event, or disease. 2. In a March 2000 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for hypertension; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 3. Evidence associated with the record since the March 2000 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 4. The Veteran's hypertension, which existed prior to service, was aggravated by his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for reopening the previously denied claim for service connection for hypertension have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for a grant of service connection for hypertension based on aggravation of a disability that existed prior to service have been satisfied. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1980 to February 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a VA RO. In June 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as hypertension and organic diseases of the nervous system like tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Tinnitus Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). Tinnitus is the type of disability that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran has a current tinnitus disability. See August 2017 VA Examination Report. Thus, the remaining question is whether the current tinnitus disability is related to service. In this case, the Veteran reported that his tinnitus began during service when he was working in the engine room onboard ships. The Board has no reason to doubt the Veteran's reports of experiencing tinnitus during service and presently and finds these statements credible. The Veteran presented for an August 2017 VA examination. The examiner opined that the Veteran's recurrent tinnitus was less likely than not a symptom associated with the Veteran's hearing loss. Rather, the examiner opined that the Veteran's tinnitus was at least as likely as not caused by or a result of military noise exposure. In support of this conclusion, the examiner explained that the Veteran's MOS was that of machinist mate which is highly probably for hazardous noise exposure. The examiner noted that the Veteran served 20 years in active duty service and his noise exposure was considerable even with consistent use of hearing protection. The examiner further noted that tinnitus is a known symptom of noise exposure and that it is more common for the condition to go unreported until it progresses into a more persistent condition. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. As tinnitus, a chronic disease, was present during service and is present currently, and is not clearly attributable to an intercurrent cause, service connection is granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 2. Reopen the Claim of Service Connection for Hypertension If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran's claim of service connection for hypertension in a March 2000 rating decision, finding that the Veteran had no symptoms of hypertension and was not receiving medication for the disease. The RO further determined that the Veteran's hypertension pre-existed service and there was no evidence that the condition permanently worsened during service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2000). The evidence received since the March 2000 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the June 2017 VA examination shows that the Veteran has a current diagnosis for hypertension and takes medication for the condition. The examiner further provided a medical opinion regarding whether there was aggravation of the Veteran's hypertension during service. This new evidence addresses the reason for the previous denial; that is, aggravation of the condition during service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 3. Hypertension The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's hypertension preexisted his military service. The Veteran's October 1979 entrance examination reveals a notation of elevated blood pressure. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). Service treatment records show numerous complaints, diagnosis, or treatment related to hypertension. During a December 1983 report of medical history, the Veteran reported having had high blood pressure. In a January 1995 treatment record, the Veteran's blood pressure was 169 systolic over 122 diastolic. In a December 1995 report of medical history, the Veteran reported having had high blood pressure. In an October 1998 treatment, the Veteran reported having had high blood pressure. During the March 1999 separation examination, in a corresponding report of medical history, the Veteran specifically reported having had pain or pressure in chest and high blood pressure. In the comments section of the report, the examiner specifically noted that the Veteran had increased blood pressure with infrequent occurrences during the past year. As the evidence of record shows that there was an increase in the severity of hypertension during service the presumption of aggravation attaches. Again, in order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. 38 C.F.R. § 3.306. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Veteran was afforded a medical examination in June 2017 for his hypertension. The examiner opined that the claimed condition of hypertension was less likely as not directly service connected. In support of this opinion, the examiner opined that the condition preexisted service and it was less likely than not that it was exacerbated beyond its natural history by military service. The examiner noted that the condition was present during his entrance exam and actually improved during military service. The Board finds this opinion less probative as it did not adequately address whether there was clear and unmistakable evidence that there was no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Overall, as specifically noted during the separation examination, the Veteran's hypertension had increased in severity which had begun the year prior to his exit from service. There is not clear and unmistakable evidence that there was no increase in severity or that the increase in severity was due to the natural progression of the disease. Thus, the presumption of aggravation has not been rebutted and service connection based upon aggravation of a pre-existing disability is granted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. REASONS FOR REMAND 1. Service Connection for Chronic Headaches is Remanded. The Veteran contends that he has a chronic headache condition that is related to his service, to include as due to his service-connected hypertension. See June 2020 Hearing Tr. at 7-8. In a December 1983 report of medical history, the Veteran reported having had dizziness or fainting spells. In a December 1995 report of medical history, the Veteran specifically reported having frequent or severe headaches, described as occasional headache treated with medication. In a February 1997 treatment note, the Veteran described having pulsating pain down to his back and neck, and noted that he had a blackout in June 1996 and December 1996. He reported that he had one of the blackouts where he fell back and hit his head. The treating physician assessed the Veteran as having headaches with infrequent blackouts. During the March 1999 separation examination, in a corresponding report of medical history, the Veteran specifically reported having had frequent headaches, dizziness or fainting spells, and periods of unconsciousness. In a July 1999 treatment note, the Veteran complained of having daily occipital headaches for the past 2 months that last 20 minutes. The Veteran was assessed with tension headaches. The Board finds that remand is warranted as the Board cannot make a fully-informed decision on the issue of headaches because no VA examiner has opined as to whether the Veteran has a headache condition that is related to his active duty service, to include as due to his service-connected hypertension. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his headache claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current headache disability onset during service or is otherwise related to an in-service injury, event, or disease. If migraine headaches are diagnosed, the examiner must opine whether they manifested within one year of the Veteran's separation from service. In offering the opinion, the examiner is asked to consider the December 1983 report of medical history where the Veteran reported having had dizziness or fainting spells; the December 1995 report of medical history where the Veteran specifically reported having frequent or severe headaches; the February 1997 treatment note where the Veteran described having pulsating pain down to his back and neck and noted that he had a blackout in June 1996 and December 1996; the March 1999 separation exam where the Veteran specifically reported having had frequent headaches, dizziness or fainting spells, and periods of unconsciousness; and the July 1999 treatment note where the Veteran was assessed with tension headaches. The examiner should also address whether any current headache disability is at least as likely as not (a) caused by his service-connected hypertension, or (b) aggravated by (worsened beyond natural progression) by his service-connected hypertension. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.