Citation Nr: 21068785 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 19-35 903 DATE: November 12, 2021 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. A 10 percent rating, but no more, for hypertension is granted. FINDINGS OF FACT 1. An unappealed April 1981 rating decision denied service connection for bilateral hearing loss; new and material evidence was not received prior to expiration of the appeal period. 2. Subsequently received evidence includes evidence that is not cumulative or redundant, and relates to an unestablished fact necessary to reopen the claim for service connection for hearing loss. 3. The Veteran's bilateral hearing loss and tinnitus were incurred in service. 4. During the period on appeal, the Veteran's hypertension required continuous medication for control; diastolic pressure predominantly 110 or more and systolic pressure predominantly 200 or more have not been shown. CONCLUSIONS OF LAW 1. New and material evidence having been received; the claim of service connection for bilateral hearing loss is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.385. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for a 10 percent rating, but no more, for hypertension have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1960 to August 1980. The undersigned Veterans Law Judge presided over a Board hearing in August 2021. A transcript of this hearing is of record. New and Material Evidence In an April 1981 rating decision, the AOJ denied service connection for hearing loss based on an October 1980 medical opinion. The AOJ denied service connection based on the lack of a current disability of hearing loss for VA purposes. The Veteran did not submit a notice of disagreement or any new and material evidence with respect to this claim within one year of notification of the April 1981 rating decision. As no notice of disagreement or new and material evidence were received respecting those claims within one year of the April 1981 notification letter, the April 1981 rating decision is final. See 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for bilateral hearing loss. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Veteran submitted another claim for service connection in March 2016, after the April 1981 rating decision became final. To reopen a previously and finally-disallowed claim, new and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). 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. Based on the evidence of record, reopening the bilateral hearing loss claim is warranted. Prior to the April 1981 rating decision becoming final, the material evidence of record consisted of service treatment records, the Veteran's September 1980 application for service connection, and an October 1980 examination report. Evidence added to the record after this decision became final includes an August 2019 C&P examination report. This evidence is new, in that the information it conveys was not previously of record. Moreover, a review of this report reveals that it is material because it states that the Veteran has a current disability of hearing loss. Accordingly, the evidence of record submitted since the April 1981 rating decision became final is new as well as material. As evidence that is both "new" and "material" has been submitted, the application to reopen the claim for an acquired psychiatric disorder is granted, and the claims are reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately caused by or aggravated by a condition for which service connection has already been established. 38 C.F.R. § 3.310. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran claims entitlement to service connection for bilateral hearing loss. Specifically, he asserts that during active duty, he was exposed to noise in his occupation working on the flight line. In cases where a hearing loss disability is claimed, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above 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. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385 ; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. Initially, the Veteran's August 2019 VA examination documents right ear and left ear hearing loss of or greater than 40 dB at 500 Hz, 2,000 Hz, 3,000 Hz, and 4,000 Hz. Thus, a bilateral hearing loss disability exists in this case. Furthermore, the Board reflects that the Veteran's Form DD-214 indicates he served as supply management specialist. While this MOS carries a low risk of exposure to noise, the Veteran's duties, according to credible statements made in his VA Form 9 and at his hearing, indicate that he performed his duties on or near the flight line. The nature of the Veteran's service is therefore consistent with a military occupation where significant noise exposure over a prolonged period is likely. Thus, the Board concedes exposure to hazardous noise for purposes of establishing an in-service event. Moreover, a threshold shift in service is apparent. Puretone threshold measurements were not obtained at the Veteran's 1960 enlistment examination. Rather, his enlistment examination report shows a whisper test of 15/15. As the August 2019 VA examiner indicated, the whisper test, in use when the Veteran enlisted, is no longer a valid test. Instead, the first in-service audiometric evidence in the claims file is in periodic in-service examinations dated October 1964, September 1969, June 1975, and June 1978 which showed hearing threshold shifts and loss under Hensley, although the audiometric data at that time did not demonstrate a hearing loss disability under 38 C.F.R. § 3.385. Such evidence of a manifestation of hearing loss during service, and after a period of service in which he suffered acoustic trauma. bolsters the Veteran's competent and credible testimony that his hearing loss began in or was otherwise the result of military service. In short, and by resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence of record demonstrates that the Veteran's bilateral hearing loss was incurred in military service. Service connection for bilateral hearing loss is therefore warranted at this time based on the evidence of record in this case. See 38 C.F.R. §§ 3.102, 3.303. Turning to the Veteran's tinnitus, the Board initially notes that tinnitus is capable of lay diagnosis; moreover, the August 2019 VA examiner found that the Veteran had tinnitus. Thus, a current disability is shown in this case. Next, the Board finds that the Veteran's tinnitus onset in service or as a result of service-related noise exposure. The August 2019 examiner opined that the Veteran's tinnitus was less likely than not related to noise exposure in service, citing a lack of evidence to relate tinnitus to "military noise." However, the Board observes that the Veteran, as a lay person, is competent to report observable symptomatology of an injury, to include ringing in the ears. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Moreover, the Veteran credibly attests that his tinnitus had a gradual onset, likely beginning near the end of his career and becoming noticeable much later. This explains why he did not seek treatment for it for decades after separation. The VA examiner, in providing a negative nexus opinion, relied on the absence of a medical explanation for the Veteran's tinnitus. By contrast, the Board finds that the Veteran's competent and credible lay reports of ringing in the ears since service are not negated by the examiner's inability to find a specific medical cause for the symptoms. The Board finds that the Veteran's competent and credible statements of the gradual onset of ringing in the ears places his appeal at least in equipoise. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and grants service connection for tinnitus. Service connection for tinnitus is therefore also warranted in this case based on the evidence of record. See Id. 3. Entitlement to a compensable rating for hypertension Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran appeals a July 2016 rating decision granting a noncompensable rating for hypertension. The Veteran timely appealed this rating, and as such, his appeal period starts on March 26, 2016, the date he filed his service connection claim. He is currently rated under 38 C.F.R. § 4.104, DC 7101 (addressing hypertension). Under DC 7101: A 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. Based on the evidence of record, the Board determines that a 10 percent rating is warranted for the period on appeal. Indeed, while his blood pressure readings have not necessarily indicated a history of a diastolic pressure of predominantly 100 mm Hg or more, the Veteran has a history of prescribed medication to control his blood pressure, to include Lisinopril and Metoprolol. These drugs, if effective, control his hypertension. It follows that if the Veteran had not taken any medication during or prior to the appeal period, his diastolic blood pressure would be at least 100 mm Hg or more, high enough to warrant the next highest rating. Therefore, when resolving all doubt in the Veteran's favor, a 10 percent rating is warranted. However, a rating in excess of 10 percent is not warranted for the Veteran's hypertension. Indeed, the results of several readings indicate blood pressure well below that required for even a compensable rating. In July 2016, the Veteran's average of three previous blood pressure was measured at 131/77. There is no indication that the Veteran's blood pressure, if uncontrolled, would rise to either 110 diastolic of 200 systolic, the levels required for a 20 percent rating. Throughout the period on appeal, the Veteran never demonstrated diastolic blood pressure of 110 or more or a systolic blood pressure of 200 or more. Importantly, even if he had exhibited those readings on occasion, even before the period on appeal, such a finding would not alter the Board's conclusion that the Veteran has not demonstrated a predominant diastolic blood pressure of 110 or more or systolic pressure of 200 or more. Therefore, as the Veteran did not exhibit the requirements for a 20 percent rating, a rating in excess of 10 percent is not warranted. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his hypertension is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that ratings in excess of those provided for in this decision are not warranted Accordingly, a rating of 10 percent, but no more, is warranted for hypertension. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia