Citation Nr: 21013347 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-17 412 DATE: March 9, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition, to include depression and anxiety, is remanded. Entitlement to service connection for heart disease is remanded.   FINDINGS OF FACT 1. The Veteran’s tinnitus began during active service and has been ongoing since. 2. The probative evidence of record does not demonstrate that the Veteran’s hypertension manifested during service or within one year of separation, or is etiologically related to service, to include on the basis of continuity of symptomology. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.04, 3.307, 3.309. 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to June 1973. This matter are on appeal from an October 2012 rating decision. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. 1. Entitlement to service connection for tinnitus The Veteran contends that service connection is warranted for tinnitus because it began during service as a result of noise exposure and has been ongoing ever since. In this case, it is undisputed that the Veteran has tinnitus. A current disability has therefore been demonstrated. The Veteran has stated that he was exposed to acoustic trauma while in service while working as a heavy equipment operator. Specifically, the Veteran has asserted that he was exposed to acoustic trauma from heavy equipment engine noise and rifle fire. Furthermore, the Veteran has stated that his tinnitus symptoms began during active service and have continued since separation. The Veteran is competent to report noise exposure during service and the Board finds his statements regarding noise exposure to be credible and consistent with the circumstances of his service as reported in the service personnel records. Therefore, an in-service injury has been shown. As the record contains evidence of a current disability, and evidence of an in-service injury or disease, what remains to be established is whether there is a nexus between the diagnosed tinnitus and his in-service disease or injury. The Veteran submitted a private opinion from Dr. P.Y. regarding his tinnitus condition in September 2011. Dr. P.Y. opined that it was more likely than not that the Veteran’s bilateral tinnitus is causally related to his active service. Dr. P.Y. indicated that the Veteran has had tinnitus symptoms since his military service. The Veteran had an examination for his tinnitus in May 2012. The examiner opined that the Veteran’s tinnitus was less likely than not a result of military noise exposure. The examiner noted the Veteran reported first hearing the tinnitus two to three years ago, many years after his service period. The examiner further noted that there is serious skepticism that delayed onset tinnitus exists beyond five to ten years after the military. Overall, the Board finds that the probative evidence of record is in favor of the Veteran’s claim for service connection. Therefore, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b). 2. Entitlement to service connection for hypertension The Veteran contends he has had hypertension since service and that his current hypertension is related to his service. The Veteran’s service treatment records (STRs) contain no indication of high blood pressure or taking medication for such. He completed a dental patient history questionnaire in which he denied recently taking any drugs or medication. The Veteran’s separation examination indicated that he experienced pain in his chest and palpitation or pounding heart. Additionally, the Veteran marked that he did not know if he had high blood pressure at his separation examination. His blood pressure at that time was 119/80. The summary of defects lists multiple other conditions, but gave no indication of hypertension or medication for high blood pressure. The Board finds that these STRs appear complete and are the type regularly kept for these purposes. It is assumed that any positive findings would have been recorded in the medical records if present. Because the medical records do not indicate such symptoms, it is assumed that those symptoms were not found. Therefore, the Board has no evidentiary foundation to find that he had high blood pressure during service. See Delrio v. Wilkie, 32 Vet. App. 232, 241 (2019) The Veteran submitted a private medical opinion from Dr. P.Y. regarding his hypertension in September 2011. Dr. P.Y. stated that the Veteran was diagnosed with hypertension by military medical personnel while at Tech school in Mississippi. Dr. P.Y. further stated that the Veteran was treated with medications at that time and has been on medications continually since his diagnosis. Dr. P.Y. noted that the Veteran’s medicated blood pressure measured as 150/85 with a pulse rate of 80. Dr. P.Y. concluded that the Veteran’s hypertension should be service connected because diagnosis and treatment of hypertension has persisted since active duty service. This opinion is not probative. First, the examiner’s factual foundation conflicts with the objective evidence. It appears to be merely a transcription of the Veteran’s allegation without regard to accuracy. Hence, the examiner’s opinion is no more probative than the Veteran’s own noncompetent lay opinion. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Moreover, Dr. P.Y. is a chiropractor. There is no indication he has the background, training, or knowledge to opine on medical issues outside his area of expertise in orthopedic matters. The Veteran had an examination for his hypertension in July 2012. The examiner confirmed that the Veteran has a current diagnosis of hypertension. However, the examiner opined that the Veteran’s current hypertension condition was less likely than not incurred in or caused by his active service. The examiner stated that the Veteran’s service medical records are silent for diagnosis of or treatment for hypertension. Additionally, the examiner noted that there was a significant silent interval between the Veteran separation from the military and his seeking any care for the claimed condition. The examiner further discussed the September 2011 medical opinion from Dr. P.Y. and noted that the examiner was unable to comment on the validity of Dr. P.Y.’s opinion because he was unable to find the referenced documentation within the service treatment record. The examiner stated that without such reference, Dr. P.Y.’s opinion remains his personal, professional opinion. The Board finds the July 2012 examiner’s opinion to carry significant probative because it provided an adequate rationale based on the accurate evidence of record. After reviewing the evidence of record, the Board finds that entitlement to service connection for hypertension is not warranted. For hypertension to be considered chronic, it must have manifested to a compensable degree within one year of service. This would mean diastolic pressure predominantly 100 or higher; or systolic pressure 160 or more; or a history of diastolic pressure 100 or more and requires continuous medication for control. The record before the Board does not contain objective evidence of that. Although Dr. P.Y. stated that the Veteran was diagnosed with hypertension during service, there is no objective evidence to support an in-service diagnosis in the Veteran’s service treatment records or medical treatment records since separation. As the record stands, there is no indication of high blood pressure in service, and no diagnosis of hypertension until many years after separation from service. There is no probative evidence of a nexus. While the Veteran believes his hypertension started during service his assertion is shown to be contradicted by the STRs. Otherwise, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the diagnostic criteria of hypertension and the course of the disease over many years. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). It is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner’s opinion. The Board finds that the preponderance of evidence is against the claim; therefore, the benefit of the doubt doctrine does not apply. Service connection is denied.   REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety, is remanded. A claim for service connection for a psychiatric disability is deemed to encompass all psychiatric diagnoses reasonably presented in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Private treatment records from September 2011 indicate that the Veteran has diagnoses of depressive disorder NOS, and anxiety disorder. As such, the Board has recharacterized the issues of entitlement to service connection for depression and anxiety and will consider whether service-connection may be awarded for any acquired psychiatric disability, to include depression and anxiety. A VA examination is needed as there is competent evidence of record that the Veteran has a diagnosis of an acquired psychiatric disorder. There is evidence that the Veteran experienced in-service stressors. Specifically, the Veteran stated that he witnessed the aftermath of a jeep accident in which an individual was killed. Regarding the third and fourth elements, there is an indication that an acquired psychiatric disorder, to include depression and anxiety, could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As such, a VA examination is needed. 2. Entitlement to service connection for heart disease is remanded. The Veteran contends that service connection is warranted for ischemic heart disease. The Veteran had an examination for his claimed heart disability in October 2012. The examiner stated that the Veteran’s VA medical records and service treatment records are silent for a diagnosis of or treatment for ischemic heart disease. The examiner stated that the only notation contained within the service medical record regarding any complaint of chest symptoms is a subjective history of “chest pain” with the notation “pain in chest not significant” signed by the examining physician at the time of separation. The examiner further noted that the Veteran’s EKG from September 2012 revealed normal sinus rhythm and nonspecific ST and T wave abnormality that may be a normal variant. The examiner concluded that there was no objective evidence of ischemic heart disease at the time of the examination, and that a medical opinion was not warranted. The Board finds that a new VA examination is warranted to determine the nature and etiology of the Veteran’s claimed ischemic heart disease. It is not clear whether the October 2012 examiner fully considered the private (non-VA) medical records confirming that the Veteran had a history of coronary artery disease, coronary stenting, and coronary bypass surgery. Accordingly, remand is necessary for an additional VA examination to determine the nature and etiology of the Veteran’s claimed ischemic heart disease. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA mental health examination from a qualified VA medical professional to determine the nature and etiology of his claimed acquired psychiatric disorder, to include depression and anxiety. Upon review of the file, the examiner is asked to opine as to the following: Is it at least as likely as not that the claimed acquired psychiatric disorder manifested in service or is otherwise causally or etiologically related to the Veteran’s military service? 2. Schedule the Veteran for a VA examination from a qualified VA medical professional to determine the nature and etiology of his claimed ischemic heart disease condition. Following review of the claims file, the clinician should respond to the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s claimed heart disability had its onset in, or is otherwise related to his period of active duty service? The examiner must address the medical evidence of record showing symptoms of a heart condition during service and treatment for a heart condition since separation. See VBMS, document labeled STR - Medical, receipt date 07/25/2014; see also VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 11/07/2013; see also VBMS, document labeled Medical Treatment Record - Government Facility, receipt date 11/07/2013. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, Associate 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.