HYPERTENSION

JENNA BRANT · 2024 · Case ID: A24077134

MIXED

Summary

The Veteran served from December 1966 to November 1969. He appeals the denial of service connection for hypertension and the remand of claims for an acquired psychiatric disability (PTSD, depression, anxiety), bilateral hearing loss, and headaches. The Board denied service connection for hypertension, finding that while the Veteran has a current diagnosis, the evidence persuasively weighs against an in-service onset or relation. Private treatment records indicated a diagnosis decades after service, and the Board found the Veteran not competent to provide a medical nexus opinion, giving more weight to the medical evidence. The Veteran's theory that hypertension developed secondary to service-connected low back disability via obesity was also denied due to lack of competent medical evidence and the Veteran's inability to provide a nexus opinion. The Board found that VA's duty to assist was fulfilled regarding sought-after records from Loma Linda VAMC, as they were deemed non-existent. The Board granted service connection for tinnitus, finding the evidence in approximate balance regarding its in-service onset due to acoustic trauma. The Board applied the benefit of the doubt, finding the Veteran credible regarding his tinnitus and in-service noise exposure. The claims for acquired psychiatric disability, bilateral hearing loss, and headaches were remanded for adequate VA examinations and opinions, addressing duty to assist errors concerning personality disorder, continuity of symptomatology, and audiometric standards.

Rationale

Private treatment records show diagnosis decades after service.; Veteran not competent to provide medical nexus opinion.; Evidence weighs against in-service onset or relation.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230919-378930

Full Decision Text

Citation Nr: A24077134
Decision Date: 11/21/24 Archive Date: 11/21/24

DOCKET NO. 230919-378930
DATE: November 21, 2024

ORDER

Entitlement to service connection for hypertension, to include as secondary to service-connected disability, is denied.

Entitlement to service connection for tinnitus is granted.

REMANDED

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety, to include as secondary to service-connected disability, is remanded.

Entitlement to service connection for a bilateral hearing loss disability is remanded.

Entitlement to service connection for headaches is remanded.

FINDINGS OF FACT

1. The Veteran's hypertension is not secondary to service-connected disability, and is not otherwise related to an in-service event, injury, or disease.

2. The evidence is at least in approximate balance that the Veteran's tinnitus began during active service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for hypertension, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1966 to November 1969. The rating decisions on appeal were issued in July 2023.

In June 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claim of entitlement to service connection for PTSD most recently addressed in a February 2021 rating decision. In July 2023, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. This is a favorable finding the Board will not disturb. 38 C.F.R. § 3.104(c).

In the September 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on July 17, 2024. Therefore, the Board may only consider the evidence of record at the time of the July 2023 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression, and anxiety, to include as secondary to service-connected disability, entitlement to service connection for a bilateral hearing loss disability, and entitlement to service connection for headaches, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Veteran testified before the Board in July 2024. A transcript of the hearing is of record.

At the July 2024 hearing, the Veteran asserted that VA had failed to obtain VA records from the Loma Linda VA Medical Center (VAMC) dated in the early 1970s. However, a review of the record documents that while VA attempted to obtain records from this facility from 1983
service-connected disability, entitlement to service connection for a bilateral hearing loss disability, and entitlement to service connection for headaches, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Veteran testified before the Board in July 2024. A transcript of the hearing is of record.

At the July 2024 hearing, the Veteran asserted that VA had failed to obtain VA records from the Loma Linda VA Medical Center (VAMC) dated in the early 1970s. However, a review of the record documents that while VA attempted to obtain records from this facility from 1983 and on, the Loma Linda VAMC responded that the Veteran had never been seen at this facility. See Web/HTML Documents, July 6, 2022. Thus, the records sought do not exist and VA has fulfilled its duty to assist in attempting to obtain these records. 38 C.F.R. § 3.159(c)(1).

While the Veteran has claimed entitlement to service connection for PTSD, the record documents an assessment of anxiety and that the Veteran is seeking service connection for depression, as well. Thus, the Board has included these psychiatric disabilities in the current claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

Entitlement to service connection for hypertension.

The Veteran contends that he incurred hypertension in service, or that it is otherwise related thereto. Alternatively, during his hearing, he asserted that he developed hypertension due to his service-connected low back disability with associated peripheral neuropathy of the bilateral lower extremities because these disabilities resulted in obesity that caused hypertension, i.e., he claims obesity as an intermediate step in the development of hypertension.

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).

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

In the July 2023 rating decision, the RO favorably found that the Veteran has a current diagnosis of hypertension. 38 C.F.R. § 3.104(c).

The Board concludes that, while the Veteran has a current diagnosis of hypertension, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of hypertension began during service or is otherwise related to an in-service injury, event, or disease.

Private treatment records show the Veteran was not diagnosed with hypertension until March 2008, or about four decades after separation from service. While the Veteran is competent to report having experienced symptoms of hypertension since service, the Veteran is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of hypertension. The issue is medically complex, as it requires knowledge of pathology and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

The Veteran believes the claimed hypertension is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized education, knowledge of pathology and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that the Veteran 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 medical evidence showing that hypertension manifested decades after service.

As noted above, the Veteran asserts that his hypertension is secondary to service-connected
is medically complex, as it requires specialized education, knowledge of pathology and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that the Veteran 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 medical evidence showing that hypertension manifested decades after service.

As noted above, the Veteran asserts that his hypertension is secondary to service-connected disability by way of obesity as an intermediate step.

Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310.

The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or is aggravated beyond its natural progress by service-connected disability.

The Veteran believes the claimed hypertension is proximately due to or the result of/aggravated beyond its natural progression by service-connected disability, particularly the service-connected low back disability with associated neuropathy by means of obesity as an intermediate step. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized education, knowledge of the interaction between multiple organ systems in the body, pathology, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that the Veteran has the skills or medical training 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). No competent medical evidence supports the Veteran's contentions.

The Board notes that VA examinations were not conducted in conjunction with this claim. In this regard, under 38 U.S.C. § 5103A(d), VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when one is necessary to make a decision on a claim and the claims file contains competent evidence that a veteran has a current disability which may be associated with service or a service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds that a VA examination and/or opinion is not necessary with respect to this claim as there is no indication of an in-service incurrence, or in-service complaints or treatment for high blood pressure or hypertension. Further, the record is devoid of any evidence indicating that hypertension had its onset during, or are otherwise related to, service. Finally, the Board acknowledges that during his hearing, the Veteran stated that he developed hypertension due to his service-connected low back disability with associated peripheral neuropathy of the bilateral lower extremities because these disabilities resulted in obesity that caused hypertension, i.e., he claims obesity as an intermediate step in the development of hypertension. However, this theory was not raised by the Veteran pre-decisionally and the Board cannot say that the RO committed a pre-decisional duty to assist error in not obtaining an opinion on this matter. Therefore, the Board finds that a VA examination is not warranted for this claim. See McLendon, 20 Vet. App. at 83; Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

Entitlement to service connection for tinnitus.

The Veteran contends that he incurred tinnitus in service due to exposure to acoustic trauma from artillery fire. He states that he has had ringing in his ears in and since service.

The AOJ has made the favorable finding that the Veteran was exposed to acoustic trauma and the Board is bound by this finding. 38 C.F.R. § 3.104(c). Nevertheless, exposure to acoustic trauma is consistent with the Veteran's duties as a Loader.

The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

In July 2023, the Veteran received a VA examination, which resulted in an assessment of tinnitus. At this time, the Veteran reported an onset of
by this finding. 38 C.F.R. § 3.104(c). Nevertheless, exposure to acoustic trauma is consistent with the Veteran's duties as a Loader.

In July 2023, the Veteran received a VA examination, which resulted in an assessment of tinnitus. At this time, the Veteran reported an onset of tinnitus in 1969, during his period active service. Nonetheless, the VA examiner concluded that tinnitus was less likely than not incurred in, or attributable to, service because there was no clinical evidence of tinnitus during service or within the first post-service year.

The VA examiner's opinion is insufficient in that it relies solely on an absence of clinical evidence. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Nevertheless, there is sufficient evidence to adjudicate the claim.

Upon review of the record, the Board finds the evidence to at least be in approximate balance as to whether the Veteran's current tinnitus began during his active service. Noise exposure is consistent with the circumstances of the Veteran's service, and tinnitus is a condition capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The Veteran states that he has had tinnitus in and since service after he was exposed to acoustic trauma, and the Board has no reason to doubt his credibility.

Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

Entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression, and anxiety, to include as secondary to service-connected disability.

The Veteran asserts that he has a psychiatric disability related to an assessment of a personality disorder in service. Personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, disability that results from a mental disorder that is superimposed upon a personality disorder may be service connected. 38 C.F.R. § 4.127.

In disability compensation claims, VA must provide an examination when there is evidence that "indicates" that a current disorder "may be associated" with a veteran's military service or a service-connected disability. 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). This evidentiary requirement is a low threshold. McLendon, 20 Vet. App. at 83. The types of evidence that "indicate" that a current disorder "may be associated" with military service or a service-connected disability include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.

On review, the Board concludes that a VA examination and opinion are necessary to decide this claim. Here, the Veteran's service treatment records document that he was assessed as having a personality disorder in service and received numerous Article 15s. Moreover, he has been assessed as having anxiety. Thus, it is indicated that the Veteran may have a psychiatric disability superimposed upon the personality disorder and a VA examination is necessary to decide the claim. Id. Moreover,
-connected disability include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.

On review, the Board concludes that a VA examination and opinion are necessary to decide this claim. Here, the Veteran's service treatment records document that he was assessed as having a personality disorder in service and received numerous Article 15s. Moreover, he has been assessed as having anxiety. Thus, it is indicated that the Veteran may have a psychiatric disability superimposed upon the personality disorder and a VA examination is necessary to decide the claim. Id. Moreover, it is indicated that the Veteran may have anxiety related to pain from service-connected disability. Remand is required to correct this pre-decisional duty to assist error. 38 C.F.R. § 20.802(a).

Entitlement to service connection for a bilateral hearing loss disability.

Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it considers the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009).

The July 2023 VA audiological examination and opinion are inadequate to decide the claims because the examiner did not consider the Veteran's entrance and separation audiograms under the ASA and/or ISO-ANSI standards where required by VA policy. The Board notes that the regulatory standard for evaluating hearing loss in VA claims was changed in September 1975 to require the use of International Standards Organization-American National Standards Institute (ISO-ANSI) rather than American Standards Association (ASA) units. For examinations conducted prior to January 1, 1967, the Board will assume that the ASA standard was used and will convert audiometric data accordingly. For examinations conducted from January 1, 1967, to December 31, 1970, the Board will consider the audiometric data under both the ASA and ISO-ANSI standards, relying on the unit measurements most favorable to the Veteran. For examinations conducted after December 31, 1970, the Board will assume that the ISO-ANSI standard was used. Remand is required to correct this pre-decisional duty to assist error. 38 C.F.R. § 20.802(a).

Entitlement to service connection for headaches.

A VA examination and opinion are necessary to decide this claim. Here, the Veteran's service treatment records document that he was assessed as having headaches on two occasions. See Service Treatment Records, November 10, 1967, and July 10, 1968. He is currently diagnosed as having allergic rhinitis with associated headaches. See Office/Clinic Notes, MedStar Harbor Hospital Primary Care, April 8, 2020. Thus, it is suggested that that the Veteran may have headaches attributable to service and a VA examination is necessary to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Remand is required to correct this pre-decisional duty to assist error. 38 C.F.R. § 20.802(a).

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed psychiatric disability, to include PTSD, anxiety, and depression.

The examiner must obtain a complete history from the Veteran. The claims folder should be made available to the medical professional. The examiner must review the record, giving particular attention to the service treatment records, lay assertions, and the pertinent medical evidence. A notation to the effect that this record review took place shall be included in the report of the examiner.

The examiner is asked to address the following:

a) Whether any diagnosed psychiatric disability was superimposed on the personality disorder during active service and resulted in additional disability.

b) Whether any diagnosed psychiatric disability has been caused or aggravated by the Veteran's service-connected low back disability with associated
determine the nature and etiology of any diagnosed psychiatric disability, to include PTSD, anxiety, and depression.

The examiner is asked to address the following:

a) Whether any diagnosed psychiatric disability was superimposed on the personality disorder during active service and resulted in additional disability.

b) Whether any diagnosed psychiatric disability has been caused or aggravated by the Veteran's service-connected low back disability with associated bilateral peripheral neuropathy of the lower extremities.

The examiner is advised personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, disability that results from a mental disorder that is superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127.

All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion.

2. Obtain an addendum medical opinion regarding the Veteran's claimed hearing loss. Only if the clinician determines that a VA examination is necessary to answer the questions below should one be scheduled.

The claims file should be available for review by the examiner. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his lay assertions regarding noise exposure, as well as the pertinent medical evidence.

The examiner is advised that exposure to acoustic trauma has been conceded. As such, the examiner is directed to accept that the Veteran was exposed to acoustic trauma.

Based on a review of the record the examiner should provide an opinion as to whether a bilateral hearing loss disability began in service or is otherwise attributable to service, including exposure to acoustic trauma.

In formulating the requested opinion, the examiner is asked to specifically consider and address the Veteran's service treatment records including the audiometric findings.

The examiner is asked to consider the service audiometric data under the ASA and/or ISO-ANSI standards in accordance with VA policy stating that prior to January 1, 1967, assume the ASA standard was used, between January 1, 1967, and December 31, 1970, consider the data under both ASA and ISO-ANSI standards, and after December 31, 1970, assume the ISO-ANSI standard was used. In this regard, the examiner's attention is directed to the Veteran's December 1966 entrance audiogram, which must be considered under the ASA standard, and the Veteran's December 1969 separation audiogram, which must be considered under both ASA and ISO-ANSI standards.

3. Schedule the Veteran for a VA examination to determine the presence, severity, and etiology of the Veteran's claimed headaches. All indicated tests and studies should be conducted.

Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether headaches began in service or are otherwise attributable to service.

(CONTINUED ON NEXT PAGE)

Jenna Brant

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Joseph R. Keselyak, 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.

Analyze in VA Law Explorer