Citation Nr: 1222790	
Decision Date: 06/29/12    Archive Date: 07/10/12

DOCKET NO.  10-05 214	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel


INTRODUCTION

The Veteran had active service from July 1969 to March 1971.  He also had prior Army National Guard service.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2009 and February 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  In March 2012, the Veteran provided testimony before the undersigned at a Travel Board hearing in Phoenix, Arizona; a transcript of that hearing is of record.

The  issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  Resolving all reasonable doubt in favor of the Veteran, the Veteran's hearing loss is due to in-service noise exposure.  

2.  The Veteran did not have hypertension in service or until many years after service, and there is no competent evidence that any current hypertension is related to service or to any incident therein.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for hearing loss have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2011).

2.  The criteria for entitlement to service connection for hypertension have not been met.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2011).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2011).  Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2011).  This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  

The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2009, prior to the adjudication of the claims.  

With respect to the duty to assist in this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records and VA medical records were obtained and associated with the claims file.  The Veteran was examined by VA audiology services and he testified at a Travel Board hearing.  Concerning the claim for hypertension, the Board concludes that an examination is not needed because there is no competent evidence establishing an in-service event, injury or disease relevant to the claim, including on a presumptive basis, and no competent evidence that any current hypertension may be related to the Veteran's military service.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also, 38 C.F.R. § 3.159(c)(4) (2011).  

Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009).  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available but not yet part of the claims file.  Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.  

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

Hearing Loss

Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies 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.

The Board notes, however, it is not required that a hearing loss disability be shown during service to establish service connection.  The Court has held, "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirement for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  

The evidence indicates that the Veteran has been diagnosed with bilateral hearing loss (as defined by38 C.F.R. § 3.385).  See April 2009 VA examination record.  The Veteran contends that his hearing loss is the result of noise exposure from weapon fire in the Army.  

Army National Guard records show that in July 1965 the Veteran reported that it was hard for him to hear.  Wax in the left ear was noted.  This was flushed with water.  

A December 1965 National Guard examination contained a notation of deafness, partial, right.  Audiometric testing showed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25(40)
15(25)
10(20)
x
5(10)
LEFT
15(30)
10(20)
15(25)
x
-10(-5)

(Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA).  Those are the figures on the left of each column and are not in parentheses.  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.)

On National Guard annual physical report of medical history completed in May 1968, the Veteran reported that he had suffered a perforated left eardrum during training the previous summer.  The examiner noted good healing.  Audiometric testing showed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
0

On the Veteran's entrance examination dated in September 1969, which was conducted nearly two months after the Veteran's period of active duty began, the Veteran checked "yes" next to whether he had now or had ever had hearing loss.  On the examination report, a notation of hearing loss was made.  Audiometry showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
5
x
5
LEFT
25
20
10
x
10

A July 1970 treatment record noted the Veteran's report of history of a report from an M-60 rupturing his right tympanic membrane (eardrum) while with the National Guard in Arizona in 1966.  The tympanic membrane was noted to be healed.  There was much wax over the right eardrum.  After flushing the wax, audiogram was noted to show normal hearing of the right ear.  The impression was temporary hearing loss, secondary to noise exposure.  The Veteran was advised to wear earplugs.

In February 1971, the Veteran's ear canals were noted to be filled with wax.  Irrigation was accomplished.  

The service separation examination in February 1971 noted normal ears.  Audiometry showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
0
LEFT
10
0
0
5
5

An October 2007 VA treatment record noted the Veteran's complaint of loss of hearing for years and worsening.  

A February 2008 audiology consultation noted his complaint of noise trauma in service.  Mixed loss on the left and high tone sensorineural loss on the right were noted.  

A VA examination was conducted in April 2009.  The Veteran reported that he had been exposed to gunfire during service resulting in a ruptured eardrum.  The Veteran reported working in mines with ear protection for nine years after service.  

Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
10
25
45
LEFT
25
40
45
50
65

Speech audiometry revealed speech recognition ability of 100 percent in each ear.  The examiner stated that given that the Veteran had normal hearing acuity bilaterally upon his discharge from the military, that his hearing loss was not caused by or related to his inservice noise exposure.

The Board finds the history of in-service noise exposure credible and consistent with his service as documented in the service treatment records.  See 38 C.F.R. §§ 3.303(a), 3.159(a)(2).  Thus, in-service noise exposure is conceded, and the remaining issue is whether the currently diagnosed hearing loss is related to the inservice noise exposure.

Although the VA examiner in April 2009 opined that the Veteran's current hearing loss was not related to service noise exposure, that opinion was based primarily on the lack of any objective evidence of a hearing disability for VA purposes on the separation examination.  However, the examiner did not offer any discussion or analysis as to the significance of the changes in the Veteran's hearing acuity, as measured by decreased auditory thresholds at the relevant frequencies during service, or to the inservice complaints and findings related to hearing loss.  

In this case, the objective evidence of record clearly showed that the Veteran sustained rupture of at least one eardrum during National Guard service prior to his entrance on active duty.  The nature of the Veteran's service during this training has not been specifically documented, however hearing loss was noted in both ears after two months of active service in September 1969, and the Veteran has credibly reported having problems with his hearing since his period of service.  

The evidence required to warrant a grant of disability benefits does not have to be conclusive.  The question is whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

Given the significant variations in the Veteran's puretone thresholds at multiple frequencies in both ears during service, his documented reports of hearing loss during service, and the examiner's failure to offer any analysis of the auditory thresholds changes during service, the Board finds that the April 2009 VA opinion is of little probative value in resolving the issue on appeal with respect to the Veteran's hearing loss.  After review of all the evidence of record, the Board finds that the competent evidence of record concerning the Veteran's hearing loss is, at best, in relative equipoise.  Therefore, resolving all reasonable doubt in favor of the Veteran, service connection for defective hearing is granted.  

Hypertension

The Veteran contends that he has hypertension that is related to exposure to what he believes was Agent Orange during a period of service at the Sharpe Army Depot in Lathrop, California.  The Veteran reported that during this period of active duty he helped to unload large canisters that had been shipped back from Vietnam and which contained various supplies and equipment.  The Veteran believes that some of these canisters had been contaminated with Agent Orange.

For VA purposes, hypertension, or isolated systolic hypertension, must be confirmed by readings taken two or more times on at least three different days.  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.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).

For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hypertension as a chronic disease, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. 

The service treatment records do not contain any findings of hypertension.  Blood pressure was noted as 100/60 in September 1969, and as 90/64 on the separation examination in February 1971.

The Veteran testified before the undersigned that his hypertension was first diagnosed in approximately 2004.  An October 2008 VA treatment record noted that the Veteran currently had hypertension, controlled by lisinopril.  

The record does not establish, and the Veteran does not contend, that hypertension began during service.  Thus, direct service connection on the basis of inservice onset is not warranted.  38 C.F.R. § 3.303.

To extent the Veteran relates hypertension to exposure to Agent Orange, assuming for the sake of the analysis without deciding that the Veteran was exposed to Agent Orange, hypertension is not a disease for which VA has established a presumption of service connection based on exposure to Agent Orange. 38 C.F.R. § 3.309(e), Note 3 (effective August 31, 2010).  The Veteran has not offered any evidence that hypertension is actually caused by exposure to Agent Orange. See Combee v. Brown, 34 F.3d 1039, 1042 (1994) (for a disease not presumed under the regulation to be caused by herbicide exposure may still seek to establish service connection by offering medical evidence that his disease was actually caused by military service, including herbicide exposure). 

Moreover, as hypertension is not a simple medical condition, any inference, that is, any opinion based on what is not personally observable cannot be competent lay evidence.  It is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on whether hypertension is related to service, including the Veteran's assertion that he was exposed to Agent Orange. 

As for presumptive service connection for hypertension as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309, hypertension was first documented in approximately 2004, well beyond the one-year presumptive period after discharge from service in 1971 for presumptive service connection as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307 and 3.309. 

Where, as here, there is a question of a diagnosis which is not capable of lay observation, and the claimed disability is not a simple medical condition, competent medical evidence is required to support the claim.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion.  38 C.F.R. § 3.159. 

Inasmuch as there is no evidence of hypertension in service or until many years thereafter, and no competent medical evidence relating the Veteran's current hypertension to service, the Board finds no basis for a favorable disposition of the Veteran's appeal.  Accordingly, the appeal is denied.  

The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issues.  Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  


ORDER

Service connection for hearing loss is granted.

Service connection for hypertension is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs