Citation Nr: 21014242 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 09-15 245A DATE: March 11, 2021 ORDER Service connection for hypertension is denied. REMANDED Service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s hypertension did not have it onset in service, did not manifest within one year of service, was not caused by in-service event, injury, disease, nor was it caused or aggravated by any service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1975 to June 1979. The Veteran provided sworn testimony at a hearing before the undersigned in October 2018. This claim was remanded by the Board in September 2012, October 2015 and April 2019 decisions for additional development. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Impaired hearing will be considered to be a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. One requirement for service connection is the current existence of the claimed disability. With regard to hearing loss, 38 C.F.R. § 3.385 defines what constitutes the current existence of a hearing loss disability. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Service connection for hypertension The Board previously noted that the Veteran was afforded a VA examination for his claimed hypertension in April 2017. The VA examiner stated that the Veteran did not have a current disability of hypertension and had never been diagnosed with hypertension. The examiner explained that the Veteran was treated for borderline high blood pressure but noted it as a “silent disease with elevated readings.” However, the examiner later stated that the most reliable date for diagnosis of hypertension was 2000, based on the Veteran’s reports. The Board did not find the Veteran’s testimony fully credible as to whether or not he was diagnosed. The April 2017 VA examination provided two seemingly contradictory opinions: first, that the Veteran has never been diagnosed with hypertension, and second, that the Veteran was diagnosed in 2000. The matter was remanded to determine the nature and etiology of the Veteran’s hypertension. See April 2019 BVA Decision. The Veteran asserts that his hypertension had its onset in service due to eating the food provided while on active duty which raised his blood pressure. See October 2018 Hearing Transcript. He stated he began getting treatment for hypertension approximately three years after leaving active duty service, in 1982, while a review of the medical records estimated Veteran was diagnosed with hypertension in 2000. See Id. The Veteran indicated his late spouse was the While in service, the Veteran’s blood pressure was recorded at 132 over 86 in December 1974 and at 120 over 62 in May 1979. The Veteran reported that his blood pressure “has been on the high side since about 1980 or 1981.” Statement in Support of Claim, December 2004. However, the Veteran marked that he did not have high blood pressure upon entering the US Army Reserves in October 1986. In December 2004, the Veteran submitted a statement to the Board in which he stated that he was diagnosed with hypertension in 2000, but he has not provided evidence of this diagnosis. His treatment records indicate treatment for hypertension began in 2011 at the earliest. The Veteran additionally provided a statement in support of his claim, asserting his diet during active duty led to his hypertension and he stopped eating such food which led to high blood pressure after he was discharged. See November 2019 Statement in Support of Claim. A buddy statement provided in support of the claim also contends that Veteran has been complaining of his hypertension symptoms for years and Veteran has been taking pills for the condition. See November 2019 Buddy Statement. The Veteran was afforded a VA examination in February 2020 for his hypertension by a VA certified examiner. The examination affirmed the diagnosis of hypertension, with a date of diagnosis in the 1990’s. The Veteran’s medical history indicated all blood pressure readings during years of active duty service were normal, including 132/86 in the December 1974 enlistment examination, 110/62 on an examination in December 1979, and 120/62 on the discharge examination in June 1979. In the National Guard enlistment examination in October 1986, the Veteran’s blood pressure reading was 120/78 and he stated he is in good health. In the quadrennial examination in June 1990, Veteran answered no to fluctuating high or low blood pressure; however, his BP reading was 140/100. Additional BP readings were 140/84 in September 1990 and 140/92 in June 1992, indicating high blood pressure. The examination also noted the Veteran was currently taking medication for his hypertension. The VA examiner opined that the Veteran’s hypertension was less likely than not caused by or incurred in active duty service. The examiner held that during the time Veteran was in active duty (1975-1979), the Veteran’s blood pressure readings were normal. Upon enlistment in the National Guard in 1986, his blood pressure was still normal, based upon the 120/78 reading in October 1986. As such, hypertension did not begin while in active service nor for many years after discharge; additionally, hypertension is never caused by noise exposure so secondary service connection is also not plausible. The VA examiner continued and opined that hypertension did not manifest within one year after discharge from service, as there are no records in the years 1980-1986; however, the enlistment records in 1986 show the examination done in October 1986 in which the Veteran clearly states he does not have high or low blood pressure, is in good health and is not on any medications. The VA examiner conclusively opined for a negative nexus opinion as to Veteran’s hypertension. The Board observes that the medical evidence does not suggest that the Veteran’s hypertension is related to his period of active service or the result of a service-connected condition. The preponderance of the evidence shows that the Veteran’s hypertension began many years after his period of service and was not caused by any incident of service. Service treatment records are negative for complaints, treatment or diagnosis of hypertension. The Veteran’s hypertension was neither incurred in nor aggravated by service. The Board finds that as a lay person, the Veteran lacks the requisite education, training, and experience needed to self-diagnose hypertension or render an opinion as to its etiology. The Veteran is competent to speak on matters such as possible symptomatology, as well as having been told he was diagnosed with hypertension, or having seen or been told about elevated blood pressure readings. See Davidson v. Shinseki, 581 F.3d 1313 (2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he merely asserted that hypertension is related to his active duty service due to the food he was provided while in service. The Veteran did not report symptomatology while in service and did not report that his hypertension was linked to any other event, incident, or injury while in-service. Further, his reports of irregularity in his blood pressure after service were not sufficient to render an opinion etiologically linking the condition to service. Accordingly, the more competent evidence related to the nature and etiology of the Veteran’s hypertension is the February 2020 examiner’s opinion. Absent any competent evidence against the examiner’s opinion, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension; there is no doubt to be resolved and service connection for hypertension is denied. REASONS FOR REMAND Service connection for bilateral hearing loss is remanded. The Veteran contends that he has bilateral hearing loss that is related to his active duty service. He specifically maintains that his bilateral hearing loss is the result of acoustic trauma he was exposed to during service; his MOS was Motor Transport, and he spent his years in active duty driving M44A2 series trucks. The Veteran’s MOS is considered moderate probability for hazardous noise exposure. The Veteran’s service treatment records do not show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. There is no specific evidence of hearing loss within the year after service as required for the presumption of service connection. In November 2020, the Veteran was granted service connection for tinnitus, which was related to his military service. Generally, the Board will find the Veteran’s lay evidence credible in establishing the requisite element of a service connection claim. However, the Board is able to find, as it did in this case, “the inconsistency between lay statements and the other evidence of record was so great as to render the Veteran not credible on the whole, as opposed to not credible as to a particular issue.” In this case, the Board found that the record contains inconsistencies regarding the onset of the Veteran’s claimed hearing loss. The Board specifically noted three separate VA examinations for hearing loss in which the Veteran’s veracity was called into question. In September 2011, a VA examiner noted that the Veteran’s responses were inconsistent and thus unreliable, not providing an accurate representation of the current hearing sensitivity. In April 2017, a new examiner found the Veteran’s “word recognition scores are markedly poorer than expected based on the pure-tone audiogram.” The examiner suggested an additional audiogram at another facility. Finally, in February 2018, a VA examiner stated that they could not give an opinion about hearing loss or tinnitus without resorting to speculation because the Veteran was not being truthful about his hearing and speech levels and understanding. The matter was remanded for another VA examination to determine if the Veteran has a current hearing loss disability and, if so, whether that disability is connected to service. See April 2019 BVA Decision. Post remand, the Veteran was provided a VA Hearing Loss and Tinnitus Examination in February 2020. The test results from this examination were found to be invalid for rating purposes and not indicative of organic hearing loss due to poor reliability. The Veteran provided in support of his claim, lay statements and a technical manual for the M44A2 series trucks he operated while on active duty. The technical manual indicated that hearing protection is required for the operation of the vehicle when the engine is running; noise levels produced by the vehicle exceed 85 dB and long-term exposure to this noise causes hearing loss. See May 2018 Correspondence. The Veteran stated he drove these vehicles while on active duty without hearing protection. See July 2020 Correspondence. The Veteran also submitted a buddy statement on his behalf, in which the buddy stated she has observed Veteran complaining of his hearing loss, ringing in his ears, and hypertension symptoms for years and has seen him go back and forth to the doctor for these problems. See November 2019 Buddy Statement. The Veteran was afforded an additional VA examination for hearing loss in November 2020. The examination results revealed that the Veteran had bilateral hearing loss for VA compensation purposes. The VA examiner in the medical opinion opined that Veteran’s bilateral hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of military service. The examiner’s rationale for the negative nexus opinion was, upon a review of the medical record, despite conceding exposure to hazardous noise, the Veteran’s entrance and separation examinations indicated his hearing sensitivity was within normal limits. Upon review of the entire medical record, considering the Veteran’s MOS, correspondence regarding the vehicles driven during active duty and the potential for hazardous noise exposure, and the Veteran’s VA examinations for hearing loss, the Board finds that there is no competent evidence of a medical link between Veteran’s hearing loss and his active duty service and there is also no competent evidence that hearing loss manifested itself to a compensable degree within a year of release from service and has been recurrent since. The Veteran has asserted that his bilateral hearing loss is related to service. However, while the Veteran is competent to report symptoms of hearing problems, he is not competent to relate his current bilateral hearing loss to acoustic trauma in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself). In the Veteran’s case, such a nexus opinion requires a certain level of expertise given the medically complex questions. Lay opinions are not sufficient in this case to prove nexus. The Board acknowledges the Veteran was exposed to acoustic trauma while on active duty; however, due to the lack of competent evidence showing that hearing loss started in service or a year after discharge from service and has been recurrent since, or showing a medical link between the hearing loss and active duty service, service connection cannot be granted on the merits. Thus, there is evidence of current disability and of in-service acoustic but no competent evidence of a link, either lay or medical, between the Veteran’s in-service acoustic trauma and hearing loss. The Board invites the Veteran to submit any additional evidence in support of his claim to service connection for bilateral hearing loss and remands the matter for further development in assessing the etiology of Veteran’s hearing loss disability before adjudication. The Veteran is advised that failure to cooperate in the development of his claim may well result in the denial of the claim on appeal. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all outstanding VA and private treatment records related to his bilateral hearing loss condition. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service bilateral hearing loss problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). After conducting any tests deemed necessary, the examiner must opine as to whether the Veteran has hearing loss that is related to or had its onset in service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.