Citation Nr: 21005462 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-36 145 DATE: February 1, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDING OF FACT The preponderance of the evidence does not show a nexus between any in-service injury or disease and current hypertension. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. § 1110, 1112, 1116, 5107; 38 C.F.R. § 3.303, 3.307, 3.309, 3.313. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to November 1970 and had subsequent National Guard service. He served in the Republic of Vietnam. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision dated August 2013 issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision, the RO denied service connection for hypertension. The Veteran timely appealed. In March 2019, the Board denied the claim for hypertension and remanded the Veteran’s claim for bilateral hearing loss. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary (the Parties), remanding the part of the Board’s decision denying the issue of hypertension. The issues have now been returned to the Board for adjudication. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). 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). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). Certain chronic diseases, including 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 one-year 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; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Entitlement to service connection for hypertension The Veteran claims entitlement to service connection for hypertension. Following a thorough review of the Veteran’s medical records, the Board finds that he is not entitled to an award of service connection. As an initial matter, the Board finds that the Veteran has satisfied the first element of service connection, a current disability. A review of the Veteran’s medical treatment records show the Veteran has hypertension that was diagnosed in 1988. See Medical Treatment Record dated August 1988. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. With regards to the second prong of service connection for hypertension: evidence of an in-service disease or injury, in a Form 9 dated July 2017, the Veteran stated, Even though there is no direct evidence between my claim and service dates, I believe my service in Vietnam was the cause of my eventual issues. The climate, duties and mental stress began then and manifested over the years. I believe anyone who was “there” would tend to agree! The Board acknowledges the Veteran’s contentions that his hypertension is caused by his service in Vietnam. The Veteran did not specifically contend nor does the record suggest that the Veteran’s current hypertension is related to herbicide exposure. However, the Parties raised the issue of herbicide exposure and directed the Board to address it in the JMPR. The Veteran is presumed to have been exposed to herbicide agents because he served in the Republic of Vietnam during the statutory presumptive period. 38 C.F.R. § 3.307(a)(6)(iii). Hypertension is not a disease presumptively associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Notwithstanding the presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran’s Dioxin and Radiation Exposure Compensation Standards Act does not preclude a claimant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In Euzebio v. Wilkie, 31 Vet. App. 394 (2019), the Board determined that a VA examination was not warranted based on McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In Euzebio, the appellant had shown a current disability and presumed exposure to herbicides in service, like the Veteran here. Unlike the Veteran here, the appellant made specific arguments that his current disability was due to herbicide and other environmental exposures in Vietnam. In Euzebio, the Board found the appellant’s statements relating to a nexus were not competent and that they were conclusory, generalized statements under Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010): insufficient to trigger the Board’s duty to assist. The Court affirmed the Board decision. The July 2020 JMPR vacated and remanded the Board’s decision in order for the Board to address the Veteran’s contention in his July 2017 Form 9. The JMPR stated that the Board erred by not addressing the Veteran’s theory of entitlement to service connection of hypertension due to service in Vietnam. To the extent the Veteran is raising the contention that his hypertension is due to his service in Vietnam, to date he has not provided any specific details regarding what event, injury or disease in service would meet the second element of service connection. The Parties inferred herbicide exposure from his statement but that inference is not equivalent to lay evidence or a contention from the Veteran. The Board does not find that the McLendon factors are met to trigger the need for an examination in this case. McLendon requires evidence of injury or disease in service and the Veteran has not identified any specific injury or disease in service with respect to his hypertension. Even if herbicide exposure were identified as the in-service injury, there is no indication of a nexus between the Veteran’s current hypertension and his in-service herbicide exposure. The Veteran has not discussed nor provided any indication that a nexus exists. Here, the Veteran has not made a conclusory, generalized lay statement regarding herbicide exposure like the appellant in Euzebio. Instead, he made an even more generalized reference to service in Vietnam. The Board finds here that the generic reference to service in Vietnam is too vague and conclusory to provide sufficient indication of a nexus to trigger a duty to assist by providing an examination to address a possible link between herbicide exposure and hypertension. Waters, 601 F.3d at 1277. The Board finds that a VA examination is not warranted. The Veteran is competent to report symptoms and experiences that are observable to an ordinary person. However, in this case the contemporaneous medical records contradict his reports of his service in Vietnam being the cause of his eventual hypertension. The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board is not basing its conclusions solely on the lack of hypertension shown while the Veteran was in service, but by viewing it in the context of the entire record. The Veteran’s service treatment records (STRs) do not show any complaints of or treatment for high blood pressure in service, and the Veteran does not allege otherwise. At separation, treatment for or complaints of hypertension were not noted. The Veteran also denied high or low blood pressure in his September 1971 National Guard enlistment report of medical history. The absence of evidence cannot be substantive negative evidence without a proper foundation to demonstrate that such silence has a tendency to prove or disprove a relevant fact. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). “The absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded.” Id. In this case, the Veteran’s statement is contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to hypertension. See AZ v. Shinseki, 731 F.3d 1303, (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing Fed. R. Evid. 803 (7) for the proposition that “the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded”). In particular, the Veteran’s STRs list numerous medical complaints, but nothing related to the currently claimed disability. Based upon the language and context of the STRs, the Board finds that the Veteran was reporting all the disabilities/medical conditions/symptoms that he was experiencing at that time. Therefore, his failure to report any complaints of high blood pressure at that time is persuasive evidence that he was not then experiencing any relevant problems. The Veteran’s post-service VA medical records do not show symptoms of hypertension, such as elevated blood pressure, until 1988. Private treatment records show borderline hypertension in February 1987 and a confirmed diagnosis of hypertension in August 1988, 18 years after his separation from service. Private treatment records ranging from February 1987 through August 2012 note the Veteran’s complaints of and treatment for hypertension. Because the evidence shows that the Veteran did not experience symptoms of hypertension until February 1987, at the earliest, hypertension did not manifest within one year of separation from service and his symptoms of hypertension were not continuous since service separation. Therefore, the Veteran is not entitled to presumptive service connection for hypertension under 38 C.F.R. §§ 3.307, 3.309(a), or continuity of symptomatology under 38 C.F.R. § 3.303(b). No competent nexus evidence has been provided that links the Veteran’s current hypertension to service. To the extent the Veteran’s lay contentions purport to serve as nexus, the Veteran does not have the medical training, expertise, or education to provide a competent nexus opinion, no matter how sincere his beliefs. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board finds the weight of the probative evidence of record is against the claim for service connection and the claim is denied. REASONS FOR REMAND Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran contended that he could not recall the date of onset of his bilateral hearing loss disability, but noted that it was more than 20 years prior to his January 2020 VA audiological examination. The Veteran underwent a VA audiological examination in August 2013. However, in its March 2019 decision, the Board determined that the medical opinion provided was inadequate and a new opinion was needed. Thereafter, the Veteran was afforded another VA audiological examination. In its January 2020 examination report, the audiologist wrote, “Testing [could] not performed due to bilateral cerumen impactions. Cerumen removal attempted but unsuccessful due to hard nature and deep canals.” Following this, the Veteran underwent another VA audiological examination in July 2020, which showed a current hearing loss disability for VA purposes. The VA examiner concluded that the Veteran’s bilateral hearing loss was less likely than not caused by or a result of an event in military service. The rationale provided was: There is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation which is objective evidence of no permanent auditory damage on active duty from conceded noise. Report of medical enlistment exam dated March 13, 1969 showed normal hearing in both ears. Report of medical separation exam dated November 22, 1970 showed normal hearing in both ears. There is no report of complaint/treatment for hearing decrease in STRs or at separation. Although noise exposure is conceded and the relationship of noise, auditory damage, and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case. Therefore, it is less likely than not that the hearing loss is related to military noise exposure. However, the July 2020 VA examiner did not explain why the Veteran’s bilateral hearing loss later in life was not due to his noise exposure while in service; the rationale focused solely on a lack of evidence of complaints of or treatment for bilateral hearing loss in the Veteran’s STRs. The mere fact that assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan, 451 F.3d at 1337. Therefore, the Board finds that a remand is necessary in order to obtain an addendum opinion specifically addressing the question of whether the Veteran’s current hearing loss could be due to his acoustic trauma while in service, regardless of the fact that there was no hearing loss upon separation from service. Accordingly, the matter is REMANDED for the following action: 1. Request an addendum opinion addressing the Veteran’s bilateral hearing loss disability. In-person examination is not required unless deemed necessary by the examiner. For purposes of this opinion, the examiner should accept that the Veteran has a current bilateral hearing loss disability for VA purposes and was exposed to loud noise while in service from helicopters, airplanes and generators. Based upon a review of the entire claims file, the examiner is requested to provide an addendum opinion as to the following question: Please specifically address the question of whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s acoustic trauma in service is related to his current bilateral hearing loss disability. If the opinion is negative, please explain why the current hearing loss is less likely than not due to the acoustic trauma in service. Relying only on the absence of contemporaneous records of hearing loss during service is insufficient. Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran’s statements regarding the onset of his symptoms. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.