Citation Nr: 1754180
Decision Date: 11/28/17 Archive Date: 12/07/17
DOCKET NO. 14-15 840A ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
1. Entitlement to service connection for hypertension.
2. Entitlement to an increased rating in excess of 20 percent for bilateral hearing loss.
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
M. Giaquinto, Associate Counsel
The Veteran served on active duty in the United States Air Force from August 1965 to December 1968.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
In March 2016, the Veteran testified at a videoconference hearing before the undersigned.
In May 2016, the Board remanded this case, to obtain the Veteran’s VA medical records, and to afford the Veteran VA examinations for hearing loss and hypertension.
This appeal was processed using the Virtual Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems.
FINDINGS OF FACT
1. Current hypertension has not been shown.
2. The Veteran’s service-connected hearing loss is manifested by audiometric test results corresponding to a numeric designation of Level IV in the left ear and Level IV in the right ear.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.104 (2017).
2. The criteria for entitlement to a rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.383, 4.85, 4.86, Diagnostic Code 6100 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veteran has not 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) (applying Scott to a duty to assist argument).
II. Service Connection for Hypertension
Pertinent Law and Regulations
Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires 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. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013).
Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) an established, service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See, Wallin v. West, 11 Vet. App. 509, 512 (1998).
In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the evidence in support of the claim is in relative balance with the weight of the evidence against the claim. In either event the Veteran will prevail. However, if the weight of the evidence is against the Veteran’s claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Veteran has claimed entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus and exposure to herbicide agents. The Board notes that the Veteran has previously been presumed by VA to have been exposed to herbicide agents due to service at Air Force bases in Thailand.
As noted above, service connection requires evidence of a current disability. Hypertension for VA purposes “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.” 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2017).
The Veteran underwent a VA examination for hypertension in July 2016. At that examination, the physician measured the Veteran’s blood pressure three separate times. The results of those readings (Systolic/Diastolic) were: 118/57, 123/69, 121/69. The examiner stated that the veteran did not have, nor had he ever had, a hypertension or isolated systolic hypertension based on VA criteria. Furthermore, the examiner stated, “Veteran denies history of hypertension. Veteran’s VA treatment records did not indicate a diagnosis of hypertension. Veteran is currently not being treated for hypertension.” The examination noted that the Veteran was prescribed Lisinopril, a medication that is used for blood pressure control, but the examiner explained that Lisinopril-prescribed for the Veteran at a dosage of 2.5 mg-is used as a renal protective effect of kidney function due to diabetes mellitus. If used for blood pressure control, Lisinopril would be prescribed at a higher dose.
The Veteran’s medical records through the Houston VA Medical Center do not show any findings regarding hypertension. On four occasions-in November 2011, May 2012, July 2014, November 2015-the Veteran received consultations for diabetic retinopathy surveillance. Reports from those consultations note a history of high blood pressure or vascular hypertension. These notes do not provide further evidence of high blood pressure, however, and are contradicted by actual, nearly contemporaneous blood pressure measurements in the Veteran’s medical history. A November 2011 primary care visit record shows his blood pressure as 128/70. A June 2012 primary care visit shows blood pressure of 127/67. An April 2013 nursing outpatient note shows the Veteran “stated no problem with blood pressure.” A May 2013 primary care visit shows blood pressure of 117/63. Three measurements taken in the same visit in November 2013 show readings of 117/63, 115/63, 132/76. In January 2015, the blood pressure measurement was 131/73.
The history of quantifiable blood pressure measurements that are all below the thresholds for hypertension, combined with the opinion of the July 2016 VA examiner provide significantly more probative weight against finding a current disability. Given that there is no current diagnosis of hypertension, the claim does not meet the first requirement for a grant of service connection.
As the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38. U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
III. Increased Rating for Bilateral Hearing Loss
Disability evaluations are determined by the application of the facts presented to the VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3.
Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Hart v. Mansfield, 21 Vet. App. 505 (2007).
The severity of hearing loss is determined by comparing audiometric test results with the specific criteria set forth at 38 C.F.R. § 4.85. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from service-connected defective hearing. The level of disability is determined by combining the numeric designation for hearing loss in each ear, according to 38 C.F.R. § 4.85, Diagnostic Code 6100 (Table VII).
In the October rating decision currently on appeal, the RO evaluated the Veteran’s hearing based on an August 2010 audiological examination. In that examination, pure tone thresholds, in decibels, were as follows:
Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 68 percent in the left ear.
Based on the pure tone threshold averages, this result evaluated the Veteran’s hearing loss disability at a 10 percent rating. However, because the left ear had a measurement of less than 30 decibels at 1000 Hertz and a measurement of at least 70 decibels at 2000 Hertz, that ear qualified for a higher numeric designation under 38 C.F.R. § 4.86(b). As a result, hearing loss was evaluated at a rate of 20 percent disabled.
At his March 2016 hearing, the Veteran testified that his wife had been complaining about his hearing getting worse. The Veteran also reported that, in his vocation as a pastor, he had to lean in very close to hear when having private conversations with parishioners, and that this was not ideal. He explained that he had received hearing aids from VA and had gone to follow-up appointments related to the hearing aids.
In May 2016, the Veteran underwent a new audiological examination in July 2016. At that examination, pure tone thresholds, in decibels, were as follows:
Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 78 percent in the left ear.
The examiner reported that the Veteran’s hearing loss did not impact ordinary conditions of daily life, including the ability to work.
Based on this evaluation, the numerical designations, as applied to Diagnostic Code 6100’s Table VII, do not provide for a rating in excess of 20 percent disabled at any point during the period on appeal. The functional impacts reported by the Veteran are contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017)
As the preponderance of the evidence is against the claim, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Entitlement to service connection for hypertension is denied.
Entitlement to a rating in excess of 20 percent disabled for bilateral hearing loss is denied.
Mark D. Hindin
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs