Citation Nr: 21042357 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-17 113 DATE: July 12, 2021 ORDER Entitlement to service connection of tinnitus is granted. Entitlement to an effective date prior to April 24, 2014, for the grant of service connection of hypertension is denied. Entitlement to an effective date prior to April 24, 2014, for the grant of service connection of right ear hearing loss is denied. Entitlement to an initial 10 percent rating for hypertension is granted. REMANDED Entitlement to service connection of left ear hearing loss is remanded. Entitlement to an initial compensable rating for right ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus had onset during active service. 2. The Veteran did not submit a claim of service connection or any other written correspondence indicating an intent to file for service connection of hypertension prior to April 24, 2014. 3. The Veteran did not submit a claim of service connection or any other written correspondence indicating an intent to file for service connection of hearing loss prior to April 24, 2014. 4. The Veteran's hypertension requires use of continuous medication to control. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an effective date prior to April 24, 2014, for the grant of service connection of hypertension have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for an effective date prior to April 24, 2014, for the grant of service connection of right ear hearing loss have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for an initial disability rating of 10 percent, but no more, for service-connected hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1985 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A transcript of that hearing is of record. It is noted that the Veteran's VA Form 9 (Appeal to the Board of Veterans' Appeals) only referred to hearing loss, and did not explicitly include service connection of tinnitus. Nonetheless, in his hearing, the Veteran testified that he intended tinnitus to be part of the hearing loss appeals, and testimony was taken with regard to that claim. As the Board is granting the claim herein, the Veteran is not prejudiced by the Board including that issue in this decision. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including tinnitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection of tinnitus The Veteran seeks service connection of tinnitus. The Board finds that the claim should be granted. A lay person is competent to testify that they experienced an audible sound in their ears in service, and that they has experienced this sound in their ears since that time. A lay person is also competent to testify to the continuity of their ringing in the ears since his discharge from service. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). Although a 2015 VA audiometric examination did not find present tinnitus, during his hearing before the undersigned the Veteran testified to present ringing in the ears, which satisfied the present diagnosis criteria. He also implied that he has had ringing in his ears since service, although did not mention it or seek treatment from the time of initial onset to the present. Because the Veteran is competent to provide that diagnosis and history of continuity, the Board is satisfied that the record supports a finding that the Veteran's tinnitus was incurred in active military service. As such, service connection for tinnitus is granted. Earlier Effective Dates Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date which the entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). 2. Entitlement to an effective date prior to April 24, 2014, for the grant of service connection of hypertension 3. Entitlement to an effective date prior to April 24, 2014, for the grant of service connection of right ear hearing loss The Veteran seeks earlier effective dates for the grants of service connection of hypertension and right ear hearing loss. The Board finds that the claims should be denied. The evidence of record indicates that claims of service connection for both hypertension and right ear hearing loss were submitted to VA on April 24, 2014. Prior to that date, the most recent documentation in the Veteran's claims file dates from July 2003, when he was notified that three claims had been denied (it is noted that those three claims did not include hypertension or hearing loss, and the Veteran did not appeal those denials). In his hearing before the undersigned, the Veteran testified that he thought he had claimed hypertension and hearing loss in his 2003 claim. In reviewing the claim itself, filed in March 2003, it was noted that the claim only included a swelling uvula, diarrhea, rashes, memory loss, and moodiness. The Veteran subsequently conceded on the record that the 2003 claim did not include either hypertension or hearing loss. As such, the date of the formal claim is April 24, 2014. Next, the evidence does not indicate that the Veteran intended to submit a claim in the year prior to the date of formal claim. However, there are no communications from the Veteran during this period. In light of the above, the Board finds that the earliest possible date for the grant of service connection for both hypertension and right ear hearing loss is April 24, 2014, the date the claim for those disabilities was received by VA. As such, the earlier effective date claims are denied. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's right ear hearing loss and hypertension, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. 4. Entitlement to an initial compensable rating for hypertension The Veteran has been granted service connection of hypertension with a non-compensable rating. He seeks a higher rating for that disability. The Board finds that an initial 10 percent rating should be granted. The Veteran's hypertension is rated pursuant to Diagnostic Code (DC) 7101, which compensates for hypertensive vascular disease, including hypertension. Under the applicable rating criteria, a 10 percent rating is applicable when evidence shows 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. 38 C.F.R. § 4.104, DC 7101. A 20 percent rating requires diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Higher ratings require diastolic pressure of predominantly 120 or more. Id. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Id., Note (1). The Veteran was afforded a VA examination in March 2015. At that time, a history of hypertension was reported. He required continuous medication (Lisinopril) to manage his hypertension. He did not have a history of diastolic pressure elevation to predominantly 100 or more. Current blood pressure readings were 128/81, 127/83, and 131/80. His average blood pressure reading was 128/81. Functionally, the examiner opined that his condition would not affect his ability to work. Private treatment records from January 2014 showed blood pressure of 135/99. VA treatment records show blood pressure of 115/69 on May 3, 2018. For his part, the Veteran has testified that his blood pressure is not consistently high, but that it fluctuates. He also testified that he is required to use constant medication to control his blood pressure, which is confirmed by the VA examination report. Based on this evidence, the Board will grant an initial minimum 10 percent rating for hypertension based on the use of continuous medication to control his blood pressure. However, the Board finds that a rating in excess of 10 percent is not supported. In this regard, his diastolic blood pressure has not been shown to be predominantly 110 or more. Neither has his systolic pressure been shown to be predominantly 200 or more. In sum, the Board finds that the Veteran's hypertension requires continuous medication, and therefore an initial 10 percent rating, but no more, should be granted. REASONS FOR REMAND Inasmuch as the Board regrets further delay in the final adjudication of these claims, a remand is necessary. 5. Entitlement to service connection of left ear hearing loss 6. Entitlement to an initial compensable rating for right ear hearing loss The Veteran seeks an increased disability rating for right ear hearing loss and service connection of left ear hearing loss. The Veteran was most recently afforded a VA examination in connection with his claims in April 2015. During his hearing before the undersigned, the Veteran testified that he could not state with definition that his hearing loss had worsened, but that it certainly had not improved. He also testified to other signs of worsening such as his wife needing to be louder or repeat herself more often, or finding himself reading other people's lips. He requested a new examination be conducted. An allegation of worsening since a previous examination will trigger a remand for a current exam in an increased rating claim. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As such, the Board must remand the right ear hearing loss claim. Further, as the question of whether or not the Veteran has a present diagnosis of left ear hearing loss for statutory purposes is a key factor in this appeal, the service connection claim must also be remanded. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Schedule the Veteran for an audiometric examination with an appropriate clinician to assess the present severity of his right and left ear hearing loss. The examiner should provide audiometric testing results to include Puretone thresholds and Maryland CNC word recognition testing. If hearing loss within the statutory definition of that term is found in the left ear, the examiner is requested to opine as to whether that hearing loss is at least as likely as not related to the same in-service noise exposure as caused his right ear hearing loss. A rationale for any opinion should be included. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel