Citation Nr: 0007610 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 94-20 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a right eye disorder. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. S. Hughes, Associate Counsel INTRODUCTION The veteran served on active duty from October 1942 to January 1946 and from January 1950 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board remanded the case in June 1997 for additional development, to include obtaining copies of treatment records which were not already incorporated with the claims file as well as the records from the veteran's second period of service. Thereafter, the RO accomplished the additional development and returned the claims file to the Board. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeals has been obtained. 2. Current right ear defective hearing as shown on VA audiometric examination cannot satisfactorily be disassociated from the right ear hearing loss shown in service. 3. The veteran's current right eye pathology includes macular degeneration which first became manifest in service. 4. There has been no competent medical evidence submitted which links the veteran's hypertension to his military service or to his service-connected chronic obstructive pulmonary disease. CONCLUSIONS OF LAW 1. Right ear hearing loss was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.385 (1999). 2. Right eye macular degeneration was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 3. The claim of entitlement to service connection for hypertension is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Additionally, where a veteran served continuously for 90 days or more during a period of war and hypertension or organic diseases of the nervous system, such as sensorineural hearing loss, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). Refractive error of the eye is not a disability subject to service connection. See 38 C.F.R. §§ 3.303(c), 4.9 (1999); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996), and cases cited therein. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (1999). The threshold question that must be resolved is whether the veteran has presented evidence of a well-grounded claim. A well-grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App 91, 92-93 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and evidence of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition to the general standard set forth in Caluza v. Brown, chronicity and continuity standards can also establish a well-grounded claim. Savage v. Gober, 10 Vet. App. 488 (1997). The chronicity standard is established by competent evidence of the existence of a chronic disease in service or during an applicable presumption period; and present manifestations of the same chronic disease. The continuity standard is established by medical evidence of a current disability; evidence that a condition was noted in service or during a presumption period; evidence of post- service continuity of symptomatology; and medical, or in some circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. Savage, supra. Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence is necessary to establish a well-grounded claim. Lay assertions of medical causation or a medical diagnosis cannot constitute evidence to render a claim well grounded. Grottveit, 5 Vet. App. at 93. Factual Background Hearing Loss: For his first period of service, the veteran's service medical records are negative for hearing loss. The service medical records for the veteran's second period of service include a December 1967 report of audiometric testing which shows that the veteran had the following hearing, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 15 25 25 LEFT 5 45 75 75 90 In November 1969, audiometric testing showed that the veteran had the following hearing, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 15 20 30 LEFT 60 70 75 85 90 In November 1970, audiometric testing showed that the veteran had the following hearing, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 35 35 LEFT 30 75 75 15 35 In December 1971, audiometric testing showed that the veteran had the following hearing, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 15 20 25 LEFT 55 70 70 90 85 As noted above, the veteran retired from active military service in July 1972. VA outpatient treatment records include a June 1990 assessment of mild high frequency sensorineural hearing loss in the right ear and profound sensorineural hearing loss in the left ear. A November 1991 Record of Audiological Evaluation includes the veteran's complaint that he had noticed a decrease in hearing in the right ear during the previous 5 months. On authorized audiological evaluation in February 1992, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 45 LEFT 90 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of 98 percent in the right ear. The examiner was unable to evaluate the speech recognition ability in the left ear. Mild to moderate high frequency hearing loss was noted in the right ear and severe to profound sensorineural hearing loss was noted for the left ear. It was noted that the veteran had been diagnosed with acoustic neuroma in the left ear. A June 1993 report of audiologic evaluation includes an assessment of mild to severe sensorineural hearing loss, right ear. A September 1994 treatment report from Otologic Associates notes "fluctuant hearing loss on the right side." The impression was fluctuant hearing loss with probable Meniere's disease, right, and acoustic neuroma, left. VA treatment records show that the veteran had an acoustic neuroma on the left. A February 1995 report of private hospitalization reflects that the veteran underwent left translabyrinthine suboccipital craniectomy for removal of acoustic neuroma as well as an abdominal fat graft closure. Eye Disorder: For his first period of service, the veteran's service medical records show that, upon Physical Examination at Place of Enlistment in May 1942, the veteran's eyes were normal. Thereafter, October 1942 and June 1943 reports of Physical Examination for Flying and a July 1943 Report of Physical Examination of Enlisted Man Prior to Discharge or Retirement show that the veteran's visual acuity was 20/20 in each eye and examination of his eyes was normal. The veteran's November 1945 Report of Physical Examination for separation reflects that his eyes were normal and his uncorrected vision was 20/20 in each eye. The service medical records for the veteran's second period of service show that his eyes were clinically normal and he reported no history of eye trouble upon annual examination in December 1951. A November 1968 Report of Medical Examination notes chorioretinal scar, macula, left eye, well healed, no sequelae. In November 1968, the veteran complained that his near vision was slightly blurred. The diagnosis was hyp. presbyopia and a prescription for reading glasses was provided. A November 1969 Report of Medical Examination reflects that the veteran's uncorrected distant visual acuity was 20/17 in the right eye and 20/15 in the left eye. His corrected distant visual acuity was 20/20 for each eye. Upon ophthalmologic consultation in February 1970, it was noted that there was NAD (no active disease) of the right eye and there was an area of degeneration around the macular area of the left eye. A November 1970 Report of Medical Examination includes a diagnosis of defective visual acuity, adequately corrected. A December 1971 treatment report includes a notation of right eye pigmentary disruption and left eye macular changes no greater than 1968 picture. A December 1971 report of ophthalmologic consultation reflects right eye, area of degeneration around macula (not noted on previous examinations), and left eye, area of degeneration (as previously noted.) A November 1989 private treatment report includes an impression of macular degeneration, left eye greater than right eye. Private treatment records show that, in June 1991, the veteran complained that everything was looking "dull." Upon examination of the eyes, the diagnoses were cataracts and ARMD (age-related macular degeneration). Upon follow-up examination in August 1991, the impression was left eye pseudophakia with opacifying, left eye posterior capsule, right eye cataract, and ARMD. A February 1992 report of VA Special Eye Examination includes diagnoses of macular pigmentary degeneration, both eyes, with loss of central visual acuity; cortical cataract, right eye, not markedly interfering with vision; and status post cataract extraction, left eye. The examiner noted that a December 1971 service medical record noted an area of degeneration around the macula of the right eye. The examiner also noted that left eye macular degeneration was found in 1973, prior to discharge from service. Therefore, it was the opinion of the examiner that the veteran's macular degeneration/scar was first noted while in the service. A July 1993 report of private hospitalization reflects that the veteran was admitted for right eye cataract extraction with lens implant. Hypertension: For his first period of service, the veteran's service medical records show that, upon Physical Examination for Flying in October 1942, the veteran's blood pressure reading was 120 systolic and 78 diastolic. The June 1943 Physical Examination for Flying reflects that his blood pressure reading was 116-124 systolic and 70-80 diastolic. The veteran's November 1945 Report of Physical Examination for separation reflects that his blood pressure measurement was 110 systolic and 55 diastolic. Review of the service medical records for the veteran's second period of service shows that there were no complaints of, treatment for, or diagnosis of hypertension during this period of active duty and he denied a history of experiencing high or low blood pressure. The highest reported in-service blood pressure reading was 126/96 in November 1961. Hypertension was not diagnosed at the time of the retirement examination which was conducted in December 1971. Blood pressure recorded at that time was 140/80 while sitting, 130/88 while recumbent, and 120/88 while standing. Repeat electrocardiographic testing was consistently within normal limits. A December 1971 Report of Medical History reflects the veteran's initial complaint of pain or pressure in chest. In January 1972, the veteran was diagnosed with mild chronic obstructive lung disease probably secondary to bronchitis. In connection with applications for life insurance, in February and April 1980, the veteran stated that he began treatment for increased blood pressure in November 1979. VA outpatient treatment records include a June 1990 Emergency Care and Treatment report in which the veteran's chief complaints were increased blood pressure and sweating. It is noted that the veteran's blood pressure was 208 systolic and 120 diastolic and he denied any chest pain, head ache, blurry vision, DOE (dyspnea on exertion), PND (paroxysmal nocturnal dyspnea), orthopnea, or claudication. The assessment was hypertension. Subsequent examination reports in June 1990 reflect that the veteran's hypertension was fairly well controlled. Subsequent treatment records, VA and private, show that the veteran has continued follow-up treatment for hypertension. A February 1992 report of VA examination includes the veteran's complaints of dyspnea on mild to moderate exertion since 1969 and an inability to walk in excess of "two blocks on moderate walking." The diagnosis was chronic obstructive pulmonary disease, moderate, on medication. By a June 1992 rating decision, service connection for chronic obstructive pulmonary disease was established. Private treatment records include a July 1995 report of radiographic examination which revealed chronic obstructive pulmonary disease and an area of parenchymal infiltrate in the posterior left upper lobe. Analysis Hearing loss: In view of the veteran's recorded complaints and the clinical data of record, the Board concludes that his claim of entitlement to service connection for right ear hearing loss is well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). He has not alleged that any records of probative value which may be associated with his claims folder and which have not already been sought are available. Overall, the Board finds that the duty to assist him has been satisfied. 38 U.S.C.A. § 5107. The threshold for normal hearing is from zero decibels to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Hearing loss, however, does not constitute a disability for VA purposes until the requirements of 38 C.F.R. § 3.385 have been met. Service connection for impaired hearing shall be established when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that the provisions of 38 C.F.R. § 3.385 prohibit the award of service-connection for hearing loss where audiometric test scores are within the established limits. Hensley, at 158. With respect to the right ear hearing loss, the most recent authorized audiological evaluation in February 1992 demonstrated that the veteran's auditory threshold at 4000 Hertz was 45 decibels; thus, the veteran currently has right ear hearing loss that meets the criteria of 38 C.F.R. § 3.385. Accordingly, service connection is not precluded if the hearing loss can be linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The service medical records do not show a diagnosis of right ear hearing loss, but audiometric examination upon separation from service in December 1971 demonstrated that the veteran's auditory threshold was 25 decibels at 1000 Hertz, 20 decibels at 3000 Hertz, and 25 decibels at 4000 Hertz. As indicated, an audiometric decibel reading over 20 decibels represents abnormal hearing, or some degree of right ear hearing loss. Hensley, at 157. Moreover, an overview of the veteran's in- service audiograms during his second period of service reflect a gradual decrease in right ear hearing acuity which culminated in the abnormal hearing threshold shown upon separation. Significantly, this gradual decrease in hearing acuity continued to progress incrementally post-service to the point where a threshold of 25 decibels at 1000 Hertz and 2000 Hertz, 35 decibels at 3000 Hertz, and 45 decibels at 4000 Hertz was demonstrated on audiometric examination conducted in February 1992. After consideration of all the evidence, the Board finds that the evidence is at least in equipoise as to whether right ear hearing loss began in service. When, after consideration of all evidence and material of record in a case before the Board with respect to benefits under laws administered by the VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). In accordance with that regulation, the Board must give the veteran the benefit of the doubt and conclude that the veteran's current right ear defective hearing cannot satisfactorily be disassociated with the right ear hearing loss shown in military service. Consequently, a grant of service-connection for right ear hearing loss is warranted. 38 U.S.C.A. § 5107. Eye Disorder: In view of the veteran's recorded complaints and the clinical data of record, the Board concludes that his claim of entitlement to service connection for right a right eye disorder is well-grounded within the meaning of 38 U.S.C.A. § 5107. The veteran maintains that his current right eye impairment was initially manifested during his period of active duty. A comprehensive review of the record shows that an area of macular degeneration of the right eye was noted during the veteran's second period of service. Specifically, these records show that there was no active disease of the right eye upon ophthalmologic consultation in February 1970, right eye pigmentary disruption was noted in December 1971, and an area of degeneration around macula of the right eye (not noted on previous examinations) was found upon ophthalmologic consultation in December 1971. Additionally, after his retirement from active duty, the veteran's post service treatment records continue to show macular degeneration of the right eye. Moreover, the Board notes that a February 1992 report of VA Special Eye Examination specifically noted reviewing the veteran's copies of his service medical records and includes the examiner's finding that degeneration around the macula of the right eye was first noted during service in December 1971. Accordingly, the Board finds that the evidence supports the grant of entitlement to service connection for macular degeneration of the right eye. Hypertension: With respect to the issue of entitlement to service connection for hypertension, the Board finds that the veteran has not submitted evidence of a well-grounded claim. A review of the medical records indicates that the veteran has been diagnosed with and is in receipt of treatment for hypertension; thus, the first prong of the Caluza analysis has been met. With regard to the second prong of the Caluza analysis, the service medical records and immediate post service medical records are devoid of complaints of or treatment for elevated blood pressure or hypertension. In this regard, the Board notes that while the veteran reported a history of pain or pressure in the chest during his second period of active service, in December 1971, the service medical records, including electrocardiographic testing, do not indicate the presence of a cardiovascular disorder. Rather, these records include a diagnosis of chronic obstructive lung disease. Even if the Board were to assume that the complaints of chest pain indicate that some form of cardiovascular disorder did exist during the veteran's active service, there is no competent medical evidence to associate his current cardiovascular disorder with either his active service or his complaints of chest pain during active service. Thus, the third prong of the Caluza test which requires nexus evidence would not be met. If the service medical records do not show the claimed disability and there is no medical evidence to link a current disability with events in service or with a service-connected disability or injury, the claim is not well grounded. With respect to the application of 38 C.F.R. § 3.303(b) for purposes of well grounding a claim by means of chronicity or continuity of symptomatology, a cardiovascular condition, including hypertension, is not necessarily a disorder that would be perceivable to lay observations. Thus, he cannot well ground his claim on the basis of continuity of symptomatology or chronicity. Savage, supra. The veteran has contended that his current cardiovascular disability is the result of his active service. However, as the Court has made clear, a lay party is not competent to provide probative evidence as to matters requiring expertise derived from specialized medical knowledge, skill, expertise, training or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1994). The Board notes that it is contended by and on behalf of the veteran that his hypertension is secondary to his service- connected chronic obstructive pulmonary disease. In this regard, pertinent regulations provide that secondary service connection will be granted when a disability is proximately due to or the result of a service connected disease or injury. 38 C.F.R. 3.310 (1999). Secondary service connection may be established for a disorder which is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that the medical evidence of record does not demonstrate that the veteran's hypertension is proximately due to or the result of the service-connected chronic obstructive pulmonary disease, nor does the evidence tend to demonstrate that this service-connected disorder has aggravated his hypertension. In Robinette v. Brown, 8 Vet. App. 69, 77 (1995), the Court stated that if a claim alleges the existence of medical evidence that, if true, would have made the claim plausible, the VA would be under a duty under 38 U.S.C.A. § 5107(a), to advise the veteran to submit such evidence to complete his application for benefits. The Court also held, however, that the obligation exists only in limited circumstances where the veteran has referenced other known and existing evidence. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, neither the Board nor the RO is on notice of the existence of any evidence which exists that, if true, would make the veteran's claim for service connection for hypertension plausible. Therefore, a remand of this issue to the RO is unwarranted and the claim is denied. Additionally, in the June 1997 remand of this case, the RO was instructed to consider the applicability of the guidelines provided by the Court in Allen v. Brown, 7 Vet. App. 439 (1995), with respect to the veteran's claim that his hypertension is related to his service-connected chronic obstructive pulmonary disease. Although the RO issued a supplemental statement of the case in October 1999, the guidelines provided by the Court in Allen were not cited therein. Although the RO did not cite Allen, the Board finds that any error on the part of the RO was harmless and was not prejudicial. There is no prejudice to the appellant since the supplemental statement of the case discussed the evidence and stated why service connection was not warranted. Any prejudice to the appellant caused by the absence of a specific citation to Allen was offset by the Board's remand of June 1997, which specifically cited Allen v. Brown, 7 Vet. App. 439 (1995) and summarized the guidelines provided therein. In this regard, the Board notes that instructions contained in a Board remand create a right in an appellant to compliance with those instructions. Stegall v. West, 11 Vet. App. 268 (1998). However, where the appellant is not harmed by the failure to comply with the remand instructions, the error is not prejudicial. Stegall v. West, at 271. In this case, inasmuch as the veteran's claim of entitlement to service connection for hypertension is not well grounded and the June 1997 Board remand notified him of the guidelines provided in Allen, the RO's failure to consider Allen is not prejudicial and a remand for this purpose is not warranted. ORDER Service connection for right ear hearing loss is granted. Service connection for a right eye disorder is granted. Service connection for hypertension is denied. Gary L. Gick Member, Board of Veterans' Appeals