Citation Nr: 18132235
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-37 989
DATE:	September 6, 2018
ORDER
New and material evidence having been submitted, the claim for service connection for kidney failure is reopened. 
New and material evidence having been submitted, the claim for service connection for gout is reopened. 
Entitlement to service connection for a kidney disability, diagnosed as chronic kidney disease, is granted.
Entitlement to service connection for bilateral hearing loss is granted.
Entitlement to an initial compensable evaluation for service-connected hypertension is denied.
REMANDED
Entitlement to service connection for gout is remanded.
Entitlement to service connection for endocarditis is remanded.
Entitlement to service connection for rheumatoid arthritis is remanded.
FINDINGS OF FACT
1. In unappealed May 1997 and November 2008 rating decisions, the agency of original jurisdiction (AOJ) denied a claim of entitlement to service connection for kidney failure and reopening of the claim, respectively. 
2. New evidence tending to prove previously unestablished facts necessary to substantiate the claim of service connection for kidney failure has been received since the May 1997 and November 2008 rating decisions, and raises a reasonable possibility of substantiating the claim.
3. In an unappealed November 2008 rating decision, the AOJ denied a claim of entitlement to service connection for gout. 
4. New evidence tending to prove previously unestablished facts necessary to substantiate the claim of service connection for gout has been received since the November 2008 rating decision, and raises a reasonable possibility of substantiating the claim.
5. The Veteran’s chronic kidney disease is aggravated beyond the normal progression of the condition by his service-connected hypertension.   
6. The Veteran’s bilateral hearing loss disability is etiologically related to service. 
7. For the entire period on appeal, hypertension has not been manifested by diastolic pressure that is predominately 100 or more; or systolic pressure predominately 160 or more; or a history of diastolic pressure predominately 100 or more and continuous medication for control of hypertension.

CONCLUSIONS OF LAW
1. The May 1997 and November 2008 rating decisions denying the claim of entitlement to service connection for kidney failure and reopening of the claim are final.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). 
2. New and material evidence has been received to reopen the claim of entitlement to service connection for kidney failure.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
3. The November 2008 rating decision denying the claim of entitlement to service connection for gout is final.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017).
4. New and material evidence has been received to reopen the claim of entitlement to service connection for gout.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
5. The criteria for entitlement to service connection for a kidney disability, diagnosed as chronic kidney disease, have been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 
6. The criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).
7. The criteria for an initial compensable rating for hypertension have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1987 to August 1990.
Service Connection
A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C. §§ 1110, 1131.
Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d).  
Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1988).  As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  
1. Kidney disability 
The first and second Wallin elements are met and not in dispute.  The Veteran has a current kidney disability, diagnosed as chronic kidney disease.  See August 2016 Dr. H.S. private medical opinion.  Further, the Veteran is service-connected for hypertension.  See May 2014 rating decision.  
As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s kidney disability and his service-connected hypertension.  In an August 2016 private medical opinion, Dr. H.S. opined that the Veteran’s service-connected hypertension aided in the development of, and permanently aggravates his chronic kidney disease.  
Affording the Veteran the benefit of reasonable doubt, the Board finds there is competent and credible medical evidence of record establishing a link between the Veteran’s kidney disability and his service-connected hypertension.  Accordingly, the Board grants service connection for a kidney disability, diagnosed as chronic kidney disease.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 
2. Bilateral hearing loss
The first and second Shedden elements are met and not in dispute.  The Veteran has a bilateral hearing loss disability for VA purposes.  See February 2014 VA examination report.  
Further, a March 1988 STR indicated the Veteran was seen for complaints of sudden hearing loss and was assessed with mild hearing loss.  A March 1988 medical consult sheet noted the Veteran was seen for sudden changes in hearing over the past two weeks and was given a provisional diagnosis of hearing loss, sudden onset.
As such, the crux of this case centers on whether the Veteran’s bilateral hearing loss is etiologically related to his service.  The Board notes the February 2014 VA examiner’s opinion that due to the gradual onset and lack of specific military related incidences, the Veteran’s hearing loss was less likely than not due to military noise exposure.  However, STRs noted the Veteran’s reports of hearing loss in service and indicated he was given a provisional diagnosis of mild hearing loss.  Therefore, the rationale upon which the February 2014 VA examiner based the conclusion with regard to etiology of the Veteran’s hearing loss is inadequate, as it is based on an incorrect factual basis that there was a lack of specific incidences in service.  Reonal v. Brown, 5 Vet. App. 458 (1993); Swann v. Brown, 5 Vet. App. 229 (1993) (Board is not bound to accept medical opinions that are based upon an inaccurate factual premise); Madden v. Gober, 125 F.3d 1477  (Fed. Cir. 1997).
After careful consideration of the evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s bilateral hearing loss began in service and has continued since service.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  All criteria for service connection have been met.  The Veteran’s claim is granted.
Increased Rating 
A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 
VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Where 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 for that rating.  Otherwise, the lower rating will be assigned. 3 8 C.F.R. § 4.7. 
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.”  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
3. Hypertension 
Service connection was established for hypertension in a May 2014 rating decision.  An initial noncompensable evaluation, effective June 17, 2013, was assigned under Diagnostic Code 7101.  
Under Diagnostic Code 7101, hypertension warrants a 10 percent rating where diastolic pressure is predominately 100 or more; systolic pressure predominately 160 or more, or if there is a history of diastolic pressure predominately 100 or more and the individual requires continuous medication for control.  A 20 percent disability evaluation for hypertension requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  38 C.F.R. § 4.104, Diagnostic Code 7101.  Where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.
The Board notes that the rating criteria for Diagnostic Codes 7101 are successive.  In other words, the evaluation for each higher disability rating includes the criteria of each lower disability rating.  Therefore, if any criterion is not met at a particular level, the Veteran can only be rated at the level that does not require the missing component.  See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that the conjunctive “and” and “with” in a statutory provision means that all of the listed conditions must be met).
Having carefully considered all the evidence of record, the Board finds that the preponderance of the evidence is against an initial compensable evaluation for hypertension.
A review of the Veteran’s treatment records reflects that he has been continuously treated with medication for hypertension, during this appeal.  However, a history of diastolic pressure predominately 100 or more coupled with continuous medication for control is not shown. 
Service treatment records (STRs) include a February 1988 STR which indicated the Veteran’s blood pressure was 120/80.  March 1988 STRs noted blood pressure readings of 122/76, 128/80, 140/80, and 130/80.  A July 1988 STR noted the Veteran’s blood pressure was 120/82.  An August 1988 STR indicated the Veteran’s blood pressure was 116/64.  A January 1989 STR noted his blood pressure was 122/70.  October 1989 STRs noted the Veteran’s blood pressure was 122/84 and 126/94.  November 1989 STRs indicated the Veteran’s blood pressure was 136/94, 130/80, and 136/94.  A February 1989 STR indicated the Veteran’s blood pressure was 100/74.  A May 1989 STR notes hid blood pressure was 122/80.  December 1989 STR medical record consultation sheets indicated the Veteran had blood pressure readings of 142/92, 150/98, and 140/96.  December 1989 STR chronological records of medical care noted blood pressure reading of 130/88 and an assessment of hypertension.  March 1990 STR chronological records of medical care indicated the Veteran’s blood pressure was 118/88 and 132/96.  April 1990 STR chronological records of medical care noted the Veteran’s blood pressure was 122/78, 102/58, and 112/80.  The Veteran’s “HBP” was indicated as “controlled.”  A May 1990 STR chronological record of medical care indicated the Veteran’s blood pressure was 112/74.  A June 1990 STR chronological record of medical care indicated his blood pressure was 112/70 and an undated STR chronological record of medical care noted he had a blood pressure reading of 112/82. 
Post-service treatment records include a March 2008 VA primary care record that noted the Veteran’s blood pressure was 161/95.  A March 2008 nephrology consult note indicated the Veteran’s blood pressure was 124/66.  A May 2008 VA nephrology consult note indicated the Veteran’s blood pressure was 141/82.  A July 2008 VA nephrology consult note indicated the Veteran’s blood pressure was 131/69.  April 2009 VA nephrology consult notes indicated the Veteran’s blood pressure was 155/79, 115/60, and 144/91.  A May 2009 VA nephrology consult note indicated the Veteran’s blood pressure was 127/73.  A November 2009 VA nephrology consult note indicated the Veteran’s blood pressure was 158/86.  A February 2010 VA nephrology consult note indicated the Veteran’s blood pressure was 172/114.  A March 2010 VA nephrology consult note indicated the Veteran’s blood pressure was 140/80.  May 2012 VA vascular surgery treatment note indicated his blood pressure was 127/74.  An August 2012 VA nephrology consult note indicated the Veteran’s blood pressure was 162/78.  An October 2012 VA rheumatology consult note indicated the Veteran’s blood pressure was 149/96.  A July 2013 VA discharge summary indicated the Veteran’s blood pressure was 101/64. 
Upon VA hypertension examination in April 2014, the Veteran was diagnosed with hypertension.  The examiner indicated that the Veteran’s treatment plan included taking continuous medication for hypertension or isolated systolic hypertension.  The examiner indicated the Veteran does not have a history of diastolic blood pressure elevation to predominately 100 or more.  The Veteran’s blood pressure readings upon current examination were 126/72, 126/72, and 126/72.  The examiner determined that the Veteran’s hypertension or isolated systolic hypertension did not impact his ability to work.  
In this case, the Veteran takes continuous medication for his hypertension, but the evidence does not show that he has predominantly had systolic readings of 160 or more or diastolic readings of 100 or more.  As such, even though the Veteran takes continuous medication for control of hypertension, neither the lay nor the medical findings supports that the criteria for a compensable (10 percent) evaluation have been met.
For the foregoing reasons, the Board finds that, throughout the rating period, the preponderance of the evidence is against an initial compensable evaluation for hypertension.
REASONS FOR REMAND
1. Gout
Treatment notes throughout the record note that the Veteran has a history of gout.  See March 2008 VA primary care notes; September 2010 VA nephrology notes; May 2008 VA nephrology notes; July 2008 VA nephrology notes; April 2009 VA internal medicine notes; March 2010 VA nephrology notes.   
STRs include a January 1990 STR rheumatology medical record consultation sheet which indicated the Veteran was given a provisional diagnosis of gout.  A July 1990 STR indicated the Veteran was seen for episodic inflame arthritis- presumably gout secondary to hypouricemia secondary to chronic renal insufficiency.  
To date, the Veteran has not been afforded a VA examination to determine the etiology for his gout condition.  Thus, remand for examination is warranted. 
2. Endocarditis
A September 2012 VA administrative note indicated the Veteran was continued on cefazolin, dosed with dialysis for bacterial endocarditis and August 2012 VA discharge diagnoses included “MSSA endocarditis.”  Joint swelling is noted throughout the STRs, including a December 1989 medical record consultation sheet which revealed that the Veteran was seen for complaints of arthralgia and joint swelling for four years and the assessment was intermittent pain and swelling.
To date, the Veteran had not been afforded a VA examination for his endocarditis condition.  As such, remand for examination is warranted.  
3. Rheumatoid arthritis
Treatment notes throughout the record note “gouty arthritis.”  See March 2008 VA primary care notes; September 2010 VA nephrology notes; May 2008 VA nephrology notes; July 2008 VA nephrology notes; April 2009 VA internal medicine notes; March 2010 VA nephrology notes.  Additionally, an October 2012 VA rheumatology consult note indicated the Veteran was seen for left knee pain and October 2012 radiographic imaging of the knees showed relatively well-preserved joint spaces with possible subtle chondrocalcinosis between the left tibial plateau and distal femur.  The cause was noted as “unlikely gout or pseudogout.”   
STRs include a December 1989 medical record consultation sheet which indicated the Veteran was seen for complaints of arthralgia and joint swelling for four years, usually his ankles, knees and rarely his wrists.  An undated abbreviated medical record indicated the Veteran had a two-year history of intermittent joint pain involving the left knee and both ankles.  A January 1990 STR rheumatology medical record consultation sheet indicated the Veteran had arthralgia of ankle joints and the impression was episodes of joint pain/ “?arthritis” and the etiology was unclear but “doubt” that this is secondary to renal condition.  A July 1990 STR indicated the Veteran was seen for episodic inflame arthritis-presumably gout secondary to hypouricemia secondary to chronic renal insufficiency.  
To date, the Veteran has not been afforded a VA examination for his arthritis condition.  Therefore, remand for VA examination is warranted.  
The matters are REMANDED for the following action:
1. Obtain outstanding relevant VA and private treatment records and associate them with the claims file. 
2. Schedule the Veteran for VA examination(s) to determine the nature and etiology of his claimed rheumatoid arthritis, gout, and endocarditis disabilities. The examiner(s) should review the claims file, and then respond to the following questions. 
Rheumatoid Arthritis
(a) Identify whether the Veteran has a current arthritis disability, to include rheumatoid arthritis as claimed by the Veteran and “gouty arthritis” noted throughout the record.  An explanation should be provided.  
(b) Is it at least as likely as not (probability of 50 percent or higher) that any currently diagnosed arthritis disability is related to an in-service disease, event, or injury?
In answering (b), the examiner should consider the December 1989 STR medical record consultation sheet which indicated the Veteran was seen for complaints of arthralgia and joint swelling for four years, usually his ankles, knees and rarely his wrists.  Additionally, an undated abbreviated medical record indicated the Veteran had a two-year history of intermittent joint pain involving the left knee and both ankles.  Also, a January 1990 STR rheumatology medical record consultation sheet indicated the Veteran had arthralgia of ankle joints and the impression was episodes of joint pain/ “?arthritis” and the etiology was unclear but “doubt” that this is secondary to renal condition.  Moreover, a July 1990 STR indicated the Veteran was seen for episodic inflame arthritis-presumably gout secondary to hypouricemia secondary to chronic renal insufficiency. 
(c) Is it at least as likely as not that any diagnosed arthritis disability is proximately due to or the result of a service-connected disability? 
(d) Is it at least as likely as not that any diagnosed arthritis disability has been aggravated (worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disability/disabilities. 
Any opinion or conclusion reached should be fully explained.
Gout
(a) Identify whether the Veteran has a current gout disability.  An explanation should be provided.  
(b) Is it at least as likely as not (probability of 50 percent or higher) that any currently diagnosed gout disability is related to an in-service disease, event, or injury?
In answering (b), the examiner should consider the January 1990 STR rheumatology medical record consultation sheet which indicated the Veteran was given a provisional diagnosis of gout and July 1990 STR which indicated the Veteran was seen for episodic inflame arthritis-presumably gout secondary to hypouricemia secondary to chronic renal insufficiency.  
(c) Is it at least as likely as not that any diagnosed gout disability is proximately due to or the result of a service-connected disability? 
(d) Is it at least as likely as not that any diagnosed gout disability has been aggravated (worsened beyond the natural progress) by service-connected disability?  If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disability/disabilities. 
Any opinion or conclusion reached should be fully explained.

Endocarditis
(a) Identify whether the Veteran has a current endocarditis disability.  An explanation should be provided.  
(b) Is it at least as likely as not (probability of 50 percent or higher) that any current diagnosed disability is related to an in-service disease, event, or injury?
(c) Is it at least as likely as not that any diagnosed endocarditis disability is proximately due to or the result of a service-connected disability? 
(d) Is it at least as likely as not that any diagnosed endocarditis disability has been aggravated (worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disability/disabilities. 
Any opinion or conclusion reached should be fully explained.
(Continued on the next page)
 
3.  After completing the above action and any other necessary development, the claims must be readjudicated.  If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representative.  After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
 
DONNIE R. HACHEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Schick, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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