Citation Nr: 21012558 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-04 718 DATE: March 4, 2021 REMANDED Entitlement to an initial compensable rating for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for pes planus is remanded. REASONS FOR REMAND These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board recognizes the November 2017 rating decision discussed whether reopening of the Veteran’s service connection claims for hypertension and sleep apnea is warranted due to a previous rating decision in December 2016 that initially adjudicated claims; however, the February 2017 claim, which led to the November 2017 rating decision and the present appeal, and its accompanying new and material evidence, was received in the appeal period of the initial December 2016 rating decision regarding the Veteran’s claims. As such, the Veteran’s claims were not subject to a final decision at the time of the November 2017 rating decision, making discussion of reopening the claims unnecessary in the context of this appeal. The Veteran appeared at a hearing before the undersigned in June 2020. A transcript of the hearing is of record. Initially, the Board notes there does not appear to be any service records associated with the claims file for the initial period of full-time service from October 1973 to April 1974 noted by the Agency of Original Jurisdiction (AOJ) or records related to any subsequent National Guard service until approximately the mid to late 1980s. The AOJ’s initial September 2016 request for service records only referenced the Veteran’s most recent period of active service from March 2003 to May 2004, resulting in the obtainment of service records from the mid to late 1980s to the present. The Board acknowledges the AOJ made a second request for service records in September 2017, at which time records dating back to October 1973 were requested, but an October 2017 response from the AMEDD Records Processing Center indicates one or more volumes of service records appear to be missing due to the limited nature of the electronic records available for the Veteran. Further, there is no indication from the record the Veteran was ever provided notice that his full service records are not currently available as required by 38 C.F.R. § 3.159(e). As a result, the Board finds further development is necessary in this regard. The Board will discuss additional development for individual issues, as necessary, below. 1. Entitlement to an initial compensable rating for left ear hearing loss is remanded. 2. Entitlement to service connection for right ear hearing loss is remanded. During the June 2020 hearing before the undersigned, the Veteran testified his bilateral hearing impairment has increased in severity since his most recent VA audiological examination in September 2017. The Veteran is competent to report observable symptoms like increased difficulty hearing. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As result, the Veteran’s testimony is sufficient to warrant a new examination to assess the current severity of his service-connected left ear hearing loss disability, as well as new assessment of whether he now has a right ear hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). 3. Entitlement to service connection for hypertension is remanded. Treatment records show the Veteran is treated for hypertension; however, this does not necessarily establish the presence of a current disability for VA compensation purposes. For hypertension to constitute a disability under VA regulation, it must be confirmed by readings taken two or more times on at least three different days with diastolic blood pressure being predominantly 90mm. or greater or systolic blood pressure being predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Further, to establish service connection on a presumptive basis under the chronic disease provisions of 38 C.F.R. § 3.307, the evidence must show hypertension manifest to a compensable degree within one year of separation from active service, which requires evidence showing diastolic pressure being predominantly 100mm. or more; systolic pressure predominantly 160mm. or more; or a history of diastolic pressure predominantly 100mm. with a requirement of continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. Here, service treatment records show the Veteran was given a provisional hypertension diagnosis in November 2004 during a pre-deployment health assessment. There is no indication of hypertension prior to the Veteran’s entry into active service in March 2003. The Board acknowledges this initial notation of hypertension falls within the one-year presumptive period for chronic disease under 38 C.F.R. § 3.307 based on the Veteran’s separation from active service in May 2004, but there is insufficient blood pressure readings to 1.) establish hypertension within the meaning of VA regulations and 2.) show hypertension manifest to a compensable degree within the one-year presumptive period. Thus, the Board finds an examination is necessary to obtain an opinion addressing the issue of whether hypertension at least as likely as not manifest to a compensable degree within one year of the Veteran’s separation from active service in May 2004. Additionally, the Board notes the Veteran submitted a medical release for a provider, T.S., M.D., who appears to have treated the Veteran for heart/cardiovascular issues shortly after his separation from active service. While the record shows the AOJ requested records from T.S., M.D., there is no indication the AOJ informed the Veteran it was unable to obtain such records because the provider required payment of a fee to fulfill the records request. 38 C.F.R. § 3.159(e) (outlining VA’s duty to inform a claimant of the inability to obtain records). The Board finds these records potentially relevant to the issue of whether hypertension manifest to a compensable degree within one year of the Veteran’s separation from active service in May 2004; therefore, the Veteran should be informed on the inability to obtain such records and be provided the opportunity to obtain them on his own behalf, prior to the adjudication of his claim. 4. Entitlement to service connection sleep apnea is remanded. The record establishes the Veteran has sleep apnea; therefore, the current disability requirement for this claim has been established. At his June 2020 hearing, the Veteran submitted a buddy statement from a fellow service member who has some medical training and was his roommate during a deployment to Afghanistan. This service member reported he observed disrupted breathing during the Veteran’s sleep on numerous occasions throughout their deployment and recommended that the Veteran seek medical attention for his symptoms. The Board finds this statement sufficient to trigger VA’s duty to provide an examination under the McLendon standard because it meets the low threshold of showing the claimed disability may be the result of service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 5. Entitlement to service connection for pes planus is remanded. The Veteran has asserted his pes planus was aggravated as a result of his deployment to Afghanistan during his period of active service from March 2003 to May 2004. Although an entrance examination is not currently of record for the Veteran’s period of initial period of service from October 1973 to April 1974, several service examinations document pes planus prior to the Veteran’s entry into active service in March 2003. Yet, the AOJ failed to obtain an examination to address whether pes planus was aggravated during service as claimed by the Veteran. The Veteran is competent to report observable symptoms such as increased foot pain. Thus, an examination is necessary to ensure the decision on the issue of service connection for pes planus is fully informed. The matters are REMANDED for the following action: 1. Renew efforts to obtain any additional service records that may be available for the Veteran, to include, but not limited to, those related to his initial period of full-time service from October 1973 to April 1974 and subsequent National Guard service throughout the 1970s and early-to-mid-1980s. These efforts must include contacting all known records repositories, as well as any unit identified by the Veteran. The Veteran should also be advised to submit any additional records he may have in his possession because his service records appear incomplete. If further records are unavailable, a formal finding to this effect must be associated with the claims file. 2. Inform the Veteran that VA is unable to obtain records from T.S., M.D., because payment of a fee is required to obtain records from this provider and provide him the opportunity to obtain and submit these records on his own behalf prior to readjudication of his claims. 3. Schedule the Veteran for a new audiological examination to assess the current severity of his left ear hearing loss and to obtain an opinion addressing whether he has a right ear hearing loss disability that is at least as likely as not (50 percent probability or greater) the result of excessive military noise exposure. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. 4. Schedule the Veteran for an examination regarding his service connection claim for hypertension. The selected examiner must provide an opinion addressing whether hypertension at least as likely as not (50 percent probability or greater) manifest to a compensable degree (i.e., diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 with a requirement of continuous medication for control) within one year of the Veteran’s separation from active service in May 2004. In the context of the opinion, the examiner is asked to address the relevance of notations of hypertension documented in service treatment records, as well as private treatment records, from approximately November 2004 to the present, as well the initial prescription of medication to control hypertension in November 2004, and how this may or may not tend to support blood pressure readings consistent with a compensable rating. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. 5. Schedule the Veteran for an examination regarding his service connection claim for sleep apnea. The selected examiner must provide an opinion addressing whether the Veteran’s sleep apnea at least as likely as not (50 percent probability or greater) first manifest during his period of active service from March 2003 to May 2004 or is otherwise the result of an in-service disease or injury. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. 6. Schedule the Veteran for an examination regarding his service connection claim for pes planus. The selected examiner must provide an opinion addressing whether there was at least as likely as not (50 percent probability or greater) any increase in the severity of the Veteran’s pes planus during his period of active service from March 2003 to May 2004, and, if so, whether it is clear and unmistakable whether such increase was due to the natural progression of the disease. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.