Citation Nr: 22008564 Decision Date: 02/15/22 Archive Date: 02/15/22 DOCKET NO. 17-23 361 DATE: February 15, 2022 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has a current bilateral hearing loss disability under VA regulations. 2. The weight of the evidence is against a finding that the Veteran's current hypertension was incurred in active service, manifested within one year of separation from active service, or was incurred in the line of duty during a period of active duty for training (ACDUTRA). CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2004 to August 2004 (he was activated for deployment but was injured during preliminary training). He served in the National Guard from 1984 to 2007, and has had periods of ACDUTRA, including from January 1985 to April 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is of record. The Board remanded these matters for evidentiary development in February 2020. In addition to the issues listed above, the Board also remanded claims for service connection for a low back disability, a right lower extremity disability, and erectile dysfunction. These claims were subsequently granted by the RO in an October 2020 rating decision. Hence, they are no longer on appeal. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2021). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Furthermore, the Board finds its prior remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). VA mailed the Veteran a letter in March 2020 asking that he submit authorization to obtain any outstanding private medical records. New records were submitted in April 2020, and in October 2020 the Veteran submitted a waiver and requested that a decision be issued in his case. In addition, the RO undertook efforts to verify dates of ACDUTRA and INACDUTRA service, obtaining relevant information on this subject in March 2020 and April 2020. The Veteran has not indicated any further development is needed in this regard. No further argument was presented in a December 2021 Informal Hearing Presentation (IHP) filed by his representative. The Board finds adjudication at this juncture is appropriate. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally 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 link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in active service. 38 C.F.R. § 3.303(d). In addition, for veterans who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including hypertension, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). In the context of Reserve or National Guard service, "active service" includes active duty and any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38°U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a). "Active service" also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 1. Bilateral hearing loss The Veteran contends he is entitled to service connection for bilateral hearing loss. At his Board hearing, the Veteran testified his hearing loss may have come from being around loud weapons during his 20+ years in the National Guard. Because the record does not show the Veteran has met the regulatory criteria for a bilateral hearing loss disability, the claim must be denied. Impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). In this case, the Veteran's service treatment records do not demonstrate that the Veteran complained of or received treatment for a bilateral hearing loss disability, under VA regulations, while in service. The Board has carefully reviewed the Veteran's post-service medical records. On balance, none of these records conclusively demonstrate the Veteran has been diagnosed with a bilateral hearing loss disability, under VA regulations, at any time during the pendency of his appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Furthermore, notwithstanding his service connection claim, the Veteran has not reported being treated for bilateral hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran received a VA Compensation and Pension (C&P) audiological evaluation in July 2014, which revealed no hearing loss disability per VA regulations. He was examined again in January 2020. At that time, puretone thresholds indicated normal hearing, but the Veteran's speech recognition scores were markedly lower, thus indicating a disability under 38 C.F.R. § 3.385. The Board ordered a new examination in its February 2020 remand. The Veteran most recently received a VA C&P audiological evaluation in October 2020. According to the report, audiological testing of both ears showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 5 10 LEFT 15 15 15 20 15 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner noted that the Veteran had normal hearing in both ears, with no evidence of a disability under VA regulations. The Veteran did not report severe hearing loss and instead only complained of some ear pain and ringing or noise in his ears. (He has been separately service-connected for bilateral tinnitus, which contemplates ringing or noise in the ears. As for ear pain, the Veteran has never raised a claim for these symptoms, nor is there a clear basis for entitlement to service connection. As such, the Board herein will limit its analysis to the Veteran's claimed hearing loss.) After carefully reviewing the record, the Board finds the persuasive evidence is against the Veteran's claim. The only positive evidence indicating the Veteran suffers from a bilateral hearing loss disability under VA regulatory criteria are the Veteran's statements in his application for service connection and the January 2020 C&P report noting speech recognition impairment meeting the requirements for disability under 38 C.F.R. § 3.385. As for the latter finding, the October 2020 VA audiologist explained that the Veteran's responses to speech in the Maryland CNC test were not initially clear, but when instructed to speak loudly he was able to understand. The results from those tests indicated normal hearing, for VA purposes. As such, the Board finds the evidence is against a finding that the Veteran's January 2020 speech recognition scores constitute a current disability under 38 C.F.R. § 3.385. With regard to the Veteran's lay statements, the Board acknowledges he is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The question of whether he suffers from a hearing loss disability, for VA purposes, is a complex medical question dependent on objective findings and not capable of lay observation. See Jandreau, 492 F.3d at 1376; Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007). Here, the October 2020 evaluation provided by a medical professional indicated the Veteran did not have a current bilateral hearing disability under 38 C.F.R. § 3.385; this outweighs his lay assertions, as implied in his service connection claim. Moreover, the Board notes the Veteran denied any hearing loss problems at that examination, further undermining his claim. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to any evidence of a bilateral hearing loss disability. Rather, the evidence persuasively weighs against a disability under 38 C.F.R. § 3.385. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The claim for service connection for a bilateral hearing loss disability is denied. 2. Hypertension The Veteran contends his current hypertension was incurred in service or is otherwise related to service. The Veteran's post-service VA medical records show that he has been treated on a regular basis for hypertension throughout the appeal period. The Board finds the "current disability" element has been met. See 38 C.F.R. § 3.303(a). The question is whether his hypertension was incurred in or is otherwise related to active service. In this regard, the Veteran's treatment records show that he was seen for chest pain and shortness of breath in May 2004 during a period of training prior to being activated for deployment. Initially his blood pressure was 163/98. He was then given a four-day blood pressure check which revealed blood pressure findings of 138/90, 152/62, 138/96, and 129/98. The Veteran noted on a July 2004 pre-deployment questionnaire that he had a history of high blood pressure. There is no evidence to suggest, and the Veteran has not alleged, that this episode of high blood pressure occurred in the line of duty. Likewise, there is no indication in the record during the short time the Veteran was on active duty (from July 15, 2004 to August 4, 2004) that he had problems with high blood pressure or related symptoms. The next objective evidence of treatment for hypertension appears in a 2006 treatment note which reflects a diagnosis of hypertension treated with medication. The Board is aware that additional laws and regulations apply when there is evidence a disability preexisted service. A veteran is presumed to be in sound condition when entering service, except for conditions "noted" on entrance or where clear and unmistakable evidence demonstrates that an injury or disease preexisted service, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). Only such conditions as are recorded in entrance examination reports are considered to be "noted" for purposes of the presumption of soundness. 38 C.F.R. § 3.304(b). If the disability is shown to be preexisting, it will be presumed to have been aggravated by service where there was an increase in disability during service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). In this case, hypertension was not "noted" on an examination report prior to the Veteran's entry to active duty in July 2004. As such, the presumption of soundness is for application. However, as discussed below, the most probative evidence of record demonstrates that the Veteran's hypertension clearly and unmistakably preexisted active service and clearly and unmistakably was not aggravated during active service. Moreover, the most probative evidence does not establish that hypertension was incurred in the line of duty. The Veteran was most recently afforded a VA C&P examination in October 2020. The report notes that it was unclear precisely when the Veteran was first diagnosed with hypertension. However, the examiner reviewed the relevant medical records and observed that in May 2004 the Veteran underwent documented treatment for chest pain and high blood pressure, as well as a subsequent blood pressure check. In terms of current symptoms, the examiner noted that the Veteran's hypertension required continuous medication but that he did not have any symptoms from the condition. The examiner opined, first, that it was unlikely the Veteran's hypertension was incurred in or caused by active service, as there was no evidence of an incident or event in service that incited his hypertension. The examiner next found that the record showed clearly and unmistakably (1) that the Veteran's hypertension preexisted his period of active service, and (2) was clearly and unmistakably not aggravated during such period. By way of rationale, the examiner explained there was simply no evidence indicating the Veteran's hypertension had worsened in the roughly two-and-a-half week active duty period. Moreover, the May 2004 episode of treatment and high blood pressure established, by clear and unmistakable evidence, that hypertension preexisted the Veteran's July 2004 entrance into active service. In this case, the positive evidence of record consists primarily of the Veteran's lay assertions that his hypertension is related to his service. As to the Veteran's lay statements, the Board notes he is competent to report matters which he personally observed or experienced, as well as what has been related to him by medical professionals. See Layno, 6 Vet. App. at 469-70; Jandreau, 492 F.3d at 1377. However, the Veteran is not competent to offer opinions on complex medical questions requiring specialized knowledge, such as the physiological causes of his hypertension. More importantly, the Veteran has not actually alleged that his hypertension was diagnosed in active service, within one year of separation from service, nor that he experienced manifestations of hypertension, such as instances of elevated blood pressure, in active service. He has likewise not provided any credible evidence that he incurred hypertension as a result of an injury or incident during a period of ACDUTRA. His outpatient treatment notes reflect that the Veteran has been treated for hypertension but do not specifically link his diagnosis to specific in-service symptoms or causes. The Veteran has never reported being told by any medical professional that his hypertension was incurred in service. See Jandreau, 1372 F.3d at 1377. (As noted above, the Veteran was afforded an opportunity to testimony before the undersigned in December 2019. He generally linked his hypertension to service but did not provide any clear basis for entitlement.) Conversely, a VA medical professional has reviewed the record and opined that the Veteran's hypertension both preexisted active service and was not aggravated during active service. Indeed, the examiner could find no in-service causes for the Veteran's hypertension. The examiner reviewed the Veteran's medical history, including his service treatment records and his lay contentions, noting that the record "clearly and unmistakably" showed that hypertension had developed in May 2004 and was not aggravated during the short period of active duty. In light of the detailed, fact-specific, and logical nature of the October 2020 VA opinion, the Board finds it is entitled to significant probative weight. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (the probative value of a medical opinion is derived from factually accurate, fully articulated, and sound reasoning). For the reasons discussed above, the Board concludes that the weight of the evidence is against a finding that the Veteran's hypertension was incurred in active service or is otherwise related to active service (including in the line of duty during a ACDUTRA). Rather, the record shows, by clear and unmistakable evidence as established in the October 2020 VA examiner's opinion, that the Veteran's hypertension developed prior to active service and was not aggravated therein. The Board reiterates that the October 2020 VA medical opinion thoroughly addressed the Veteran's medical history, including his service treatment records, and determined, under on the proper evidentiary standard, that service connection was not warranted by the evidence. There is no credible evidence of record calling these findings into question. Accordingly, the Board finds that the negative evidence of record outweighs the positive. The claim for service connection for hypertension must be denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ryan, 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.