Citation Nr: 0120127 Decision Date: 08/06/01 Archive Date: 08/14/01 DOCKET NO. 97-02 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for cardiovascular disease, including hypertension. REPRESENTATION Appellant represented by: Colorado Department of Social Services WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Stanley Grabia, Counsel INTRODUCTION The veteran had active duty for training from September 1976 to March 1977, and active duty from September 1980 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The veteran testified at a hearing in January 1997 before a hearing officer and in July 1999 before the Board member rendering the decision herein. Transcripts of the hearings are in the claims folder for review. This case was previously before the Board in September 1999 at which time the veteran's claim was found to be well grounded and it was remanded for further development. The RO returned the case to the Board in August 2000. In October 2000, the Board requested a medical advisory opinion from the Veterans Health Administration in accordance with 38 C.F.R. § 20.901(a). In conformance with 38 C.F.R. § 20.903, the Board notified the veteran and his representative that it had requested a medical opinion regarding the veteran's claim from a medical expert associated with VA. After the opinion was received at the Board, the representative was provided a copy of the opinion and 60 days to submit any additional evidence or argument in response to the opinion. See 38 C.F.R. § 20.903. The veteran's representative indicated in June 2001 that he had no further evidence or argument to present. FINDINGS OF FACT 1. VA has notified the veteran of the evidence needed to substantiate his claim and developed all evidence necessary for an equitable disposition of the veteran's claim. 2. Cardiovascular disease, including hypertension, was not manifested during the veteran's military service or within one year of his discharge from service, nor is cardiovascular disease, including hypertension, otherwise shown to be related to the veteran's military service. CONCLUSION OF LAW Cardiovascular disease, including hypertension, was not incurred in or aggravated by the veteran's military service, nor may cardiovascular disease, including hypertension, be presumed to have been incurred in service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1137 (West 1991 and Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to notify and to assist. Initially the Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000. Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This newly enacted legislation provides, among other things, for notice and assistance to claimants under certain circumstances. Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, even though the RO did not have the benefit of the explicit provisions of the VCAA, VA's duties have been fulfilled. First, VA has a duty to notify the appellant and his representative of any information and evidence needed to substantiate and complete a claim. VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The veteran and his representative have been notified of the applicable laws and regulations which set forth the criteria for entitlement to service connection for cardiovascular disease, including hypertension. The discussions in the rating decision, statement of the case, and supplemental statements of the case have informed the veteran and his representative of the information and evidence necessary to warrant entitlement to the benefit sought. Additionally, the veteran was afforded hearings in 1977 and 1999. The Board therefore finds that the notice requirements of the new law have been met. Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. After reviewing the claims folder, the Board finds that there has been substantial compliance with the duty to assist provisions of the new legislation. The record includes VA and private treatment records, transcripts of the veteran's hearing testimony, and statements from the veteran's wife. The Board remanded this case in September 1999 for additional development and also obtained a VHA opinion regarding the veteran's claim. The appellant has not referenced any unobtained evidence that might aid his claim. The Board therefore finds that the record as it stands is adequate to allow for equitable review of the veteran's appeal. Under the circumstances of this case, where there has been substantial compliance with the VCAA, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Moreover, given the completeness of the present record which shows substantial compliance with the notice/assistance provisions of the new legislation, the Board finds that any "error" to the appellant resulting from this Board decision does not affect the merits of his claim or his substantive rights, for the reasons discussed above, and is therefore harmless. See 38 C.F.R. § 20.1102. 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; 38 C.F.R. § 3.303. Service connection connotes many factors but basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Certain chronic disabilities, such as cardiovascular disease, including hypertension, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). The Board may obtain a medical opinion from the Chief Medical Director of the Veterans Health Administration of the Department of Veterans Affairs on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal. 38 C.F.R. § 20.901(a); 38 U.S.C.A. 5107(a). Background. Service medical records reflect that diastolic readings of 90 were recorded on several occasions, including readings of 120/90 in August 1981, 138/90 in April 1982, and 130/90 in July 1983 (the last reading recorded in the available service medical records). The service medical records also include many diastolic readings below 90. On his initial application for compensation dated in November 1985, the veteran listed the following disability: hearing loss, a right ankle condition, and a dental condition. The report of a December 1985 VA examination that shows the veteran's blood pressure was 140/90, bilaterally. The veteran filed his initial claim for compensation for chest pain and high blood pressure in February 1996. Private medical records were received which reflect that the veteran was seen in August 1991 for complaints of sharp substernal pain. He had no known history of cardiopulmonary disease. Elevated blood pressure readings were recorded and it was noted that he had had high blood pressure for 7 months. An assessment of anterior chest pain of musculoskeletal etiology (acute myocardial infarction ruled out) was given. In September 1991, the veteran was seen at the Penrose St. Francis Healthcare System for a small laceration. It was reported that he was on blood pressure medication and that his blood pressure was 147/85. Medical records from this facility reflect that he was seen in October 1991 for Captropril scintigraphy with the indications being "Recent diagnosis of hypertension." This procedure resulted in an impression of slight prolongation of transit time through the right kidney post-Captopril, suspicious for renal vascular hypertension. When he was seen later in October 1991 his blood pressure was 152/87 and it was noted that his medications included Vasotec. In March 1993 the veteran was admitted to the intensive care unit of this facility with a diagnosis of unstable angina. It was reported that the veteran had had hypertension since a motor vehicle accident in 1991. He was to be evaluated for possible myocardial infarction versus ischemia. Left heart catheterization with selective coronary angiography resulted in an impression of normal coronary anatomy with systemic hypertension. When the veteran was released from the hospital after two days, the final diagnoses were as follows: (1) Chest pain syndrome, non-cardiac in origin; (2) Hypertension; and (3) Question of medical compliance. In December 1994 a private physician took a reading that showed the veteran's blood pressure was 205/105. Diagnosis was "hypertension with history." During an August 1996 VA examination the veteran's blood pressure was 188/138 while standing, 190/140 while sitting, and 186/126 while lying down. Diagnosis was severe essential hypertension with left ventricle atrophy. At an RO hearing in January 1997, the veteran testified, in essence, that there were only three or four pages of service medical records for 1983, the year he allegedly was diagnosed with hypertension. He believed the claims file did not contain complete service medical records. The separation physical was also not on file. He complained of significant chest pains during service. He testified that just a few days prior to discharge he was treated with a pink blood pressure medicine to regulate his blood pressure. In December 1983 he reported to the emergency room at a VA medical facility for chest pains. He also was seen at the Eisenhower Hospital (since closed). He was told the hospital records were probably destroyed. He said he had a heart attack at that time, and a second heart attack in 1994. He testified that he had been diagnosed with coronary artery disease and hypertension during service. However he was not told he had elevated blood pressure, and he was not medicated. He was treated after service by a private doctor. Afterwards he received treatment at the VA. He testified that a doctor told him his hypertension was due to service. In a January 1997 letter submitted in support of the veteran's claim, the veteran's spouse indicated that she is a practicing registered nurse. She wrote that "while I have the ability to monitor and try to control some of the problems [the veteran] has faced, they are ongoing and began while he was in the Army." She reported that that the veteran's heart condition had "deteriorated from the time he was in the Army through the present." Specifically, the veteran's spouse reported that the veteran complained of chest pain each time he returned from "down range," and "would go to the Emergency Room at Fort Carson." She reported further that "his blood pressures have been in the range of 290/90 and as high as 300/120," and that there was no improvement with dietary control or medication. However, the veteran's spouse did not specifically note whether the blood pressure readings she reported in her letter were obtained during or after the veteran's service. She also reported that the veteran has been tested for kidney damage, and that some blockage has been noted "due to prolonged untreated high blood pressure while in the Army." In a deferred rating decision dated in January 1997, the RO hearing officer initiated development for VA medical center records, including emergency room medical records, since 1983. The RO also requested additional medical records from the Service Department; the RO requested all records of treatment from the emergency room at the Fort Carson hospital for September 1983. In August 1987 the United States Army Medical Department Activity at Fort Carson, Colorado, responded that there were no records available at that facility for the veteran for 1983. In October 1997 the RO requested additional information from the veteran regarding treatment he received at Fort Carson in 1983. The RO then sent another request to the Service Department for medical records and clinical records during service as well as for treatment after service. In October 1997 the Service Department responded that all available medical records for the veteran had already been furnished to the RO. In January 1998, February 1998, and March 1998, the Service Department responded to the RO's requests for additional records; the response was that all available service medical records had been forwarded to the RO and that a search for clinicals was negative. VA and private medical records were subsequently added to the claims folder. As noted above, the veteran was released from military service in September 1983. The VA medical records reflect that the veteran was seen in December 1983 for dental treatment. A Health Questionnaire for Dental Outpatients dated in December 1983 reflects that the veteran reported that he was not under the care of a physician for any condition, that he was not taking any medicines or drugs, and that he did not have high blood pressure. In October 1986 the veteran was seen for complaints of chest pain without shortness of breath. Chest X-rays revealed his heart to be normal and his lungs to be clear. An EKG revealed a nonspecific ST abnormality. It was suspected that his complaints of pain were of gastrointestinal etiology. In July 1987 the veteran was again seen for complaints of chest pain, felt to be of GI etiology. It was reported that the veteran had suffered from "Heartburn" since 1980 when he had been in service. His blood pressure was 130/74. The assessment was peptic symptoms. When he was seen in July 1988 for complaints of swollen tonsils and inability to swallow, his blood pressure was 138/90. When seen for similar complaints in September 1988 his blood pressure was 147/88. In October 1988 his blood pressure was 118/74 and the assessment was probable strep throat. Blood pressure readings of 132/82 and 132/90 were recorded in August 1989 and December 1989. When seen in July 1990, his blood pressure was 152/102; the physician stated that there was no history of hypertension but requested that the veteran return in 6 to 7 days to have his blood pressure checked again. The records reflect that the veteran had an appointment to be seen in April 1991 at the hypertension clinic. The veteran testified in July 1999 that he was diagnosed with hypertension in September 1983, shortly before his release from service. The veteran stated that he began to experience chest pain about the middle of 1981 and that he later experi- enced severe headaches. He testified that while his wife was a licensed practical nurse she took his blood pressure as part of her clinical training to become a registered nurse and that she told him he had high blood pressure. He stated that about 4 to 5 months after service he was treated at the VA for chest pain. His blood pressure was elevated. His treatment was with Tagamet, and he was diagnosed with ulcers. In September 1999 the Board remanded this case primarily to get more information from his wife regarding her treatment of the veteran through service to the present time. In a letter received in October 1999, the veteran's wife reported that the veteran had had problems with high blood pressure, chest pain, headaches, and other symptoms related to high blood pressure while he was in the Army in 1983. She stated that as a nurse she took his blood pressure at that time and his readings were as high as 260/130 and 290/110, along with elevated pulses and shortness of breath. She reported that his symptoms included excessive sweating, weakness, bad headaches with nausea and vomiting, shortness of breath, tightness in his chest, severe dizziness, ankle edema, and heart palpitation. The Board requested an opinion in October 2000 from a VA medical expert. The physician was requested to review the record and furnish an opinion as to the degree of medical probability that the veteran's current hypertensive vascular disease had its clinical onset in service. In February 2001 a response was received from a physician with expertise in hypertension and lipid metabolism associated with the Atlanta VA Medical Center and the Department of Medicine, Emory University School of Medicine. The physician provided a review and summary of the veteran's medical history with respect to blood pressure and cardiovascular disease for the period from 1980 to 1995. The physician noted that many blood pressure readings were taken while the veteran was in service. Only 2 blood pressures were considered slightly elevated. One reading was following a traumatic assault, while the other was during a prolonged gastrointestinal illness. All other readings fell within the normal or low normal category. The physician noted significant post service medical findings, including the results of the December 1985 VA examination. No mention was made of elevated blood pressure, or of a previous hypertension diagnosis. Blood pressure was 140/90, and the veteran was not taking any hypertension medication. In August 1991 the veteran was seen at the Penrose Hospital emergency room and treated for chest pain, diagnosed as musculoskeletal. The veteran was not on blood pressure medication and no mention was made of a previous hypertension diagnosis. Blood pressure was 140/80, and the veteran was not taking any hypertension medication. In March 1993 the veteran was seen again at the Penrose Hospital for chest pain. The admitting report noted a 1991 closed head injury from a motor vehicle accident, with blunt chest trauma and, "has had hypertension since that time." A cardiac catheterization to rule out coronary artery disease was normal. An echocardiogram revealed left ventricular hypertrophy. In January/March 1996 extensive work-up for secondary causes of hypertension were all normal. In August 1996 VA examination noted that the patient had had intermittent blood pressure elevations from 1983-1985. He was examined and started on Vasotec medication in 1990. Blood pressure was 188/126, 190/140, and 188/138. The medical expert provided the following opinion: It is my opinion that there is no evidence in the records provided, to substantiate a claim that the patient developed hypertension during his period of active military duty from 1980-83. Onset of hypertension appears to have occurred sometime between the years of 1985 and 1991 or 1992. He apparently was not treated for hypertension until sometime after 8/91. In addition, he had a negative workup for coronary artery disease in 1993 but was found to have left ventricular hypertrophy, a possible sequela of uncontrolled hypertension. Hypertension is a disorder in which many genes contribute in various degrees depending upon environmental and lifestyle influences. Caloric imbalance with subsequent overweight, habitual high salt intake, sedentary lifestyle, excess alcohol consumption and inadequate potassium intake may all contribute to the development of hypertension in certain patients. The etiology of this patient's hypertension is likely to be multifactorial. Though most of these factors were not addressed in these records, it should be noted that the patient had gained 50-70 lbs. In body weight since his discharge from the military. This may have been one of the factors that contributed to the development of essential hypertension. Analysis. The positive evidence which tends to support the veteran's claim that his hypertension began during his military service consists of his testimony and the letters from his spouse. In letters received in January 1997 and October 1999, the veteran's spouse stated that, as a registered nurse, she monitored her husband's blood pressure while he was still in the military service in 1983. She reported that he had manifested elevated blood pressure readings at that time as well as many symptoms related to high blood pressure. She stated that the veteran developed hypertension and other related medical problems during service which have continued to the present time. The veteran testified in 1997 that he had complained of significant chest pains during service and that a few days prior to discharge he was treated with a pink blood pressure medicine to regulate his blood pressure. In 1999 he again testified that he was diagnosed with hypertension in September 1983, shortly before his release from service. The negative evidence consists of the voluminous medical records primarily from the late 1980's through the 1990's, all of which clearly reflect that the veteran's hypertension was first diagnosed in 1991. None of the medical records created in the 1980's and early 1990's tends to link the hypertension to the veteran's military service. Despite the veteran's testimony regarding high blood pressure readings during service and his wife's statements, the service medical records do not show that hypertension was identified while the veteran was in service or until several years after his release from service. Significantly, numerous blood pressure readings were recorded during his military service, but there is no indication that hypertension was even suspected by trained medical personnel. When the veteran sought dental treatment at a VA facility in December 1983 he reported that he was not under the care of a physician for any condition, that he was not taking any medicines or drugs, and that he did not have high blood pressure. When the veteran first applied for VA compensation in November 1985 he did not list hypertension as a disability and hypertension was not identified on VA examination for disability evaluation purposes in December 1985. When he was seen at a VA facility in July 1990, his blood pressure was 152/102 but the physician stated that there was no history of hypertension. When the veteran was seen in August 1991, it was noted that he had had high blood pressure for 7 months. When the veteran was seen in September and October 1991 at the Penrose St. Francis Healthcare System it was reported that he was on blood pressure medication and that the diagnosis of hypertension was recent. In March 1993, it was reported that the veteran had had hypertension since a motor vehicle accident in 1991. A medical expert who reviewed the records in this case concluded that the evidence of record did not substantiate a claim that the veteran developed hypertension during his period of active military duty from 1980 to 1983. This physician concluded that the onset of the veteran's hypertension appeared to have occurred sometime after 1985 and that he was not treated for hypertension until sometime in 1991. When all the evidence is assembled, the determination must then be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board finds that the negative evidence in this case clearly outweighs the positive evidence. The preponderance of the evidence clearly reflects that no cardiovascular disease, to include hypertension, was noted during the veteran's military service, and no such disease was present to a compensable degree within one year following his release from service in September 1983. Hypertension was first diagnosed in 1991, several years after the veteran's release from military service, and hypertension is not shown to have been present in service or to a compensable degree within one year of his military service. The only medical evidence concerning the etiology of the veteran's hypertension is the opinion received in February 2001 and this opinion does not tend to relate the hypertension to any incident of the veteran's military service. Inasmuch as the clear preponderance of the evidence is against the claim of entitlement to service connection for a cardiovascular disorder, to include hypertension, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 1991); VCAA, Pub. L. 106-475, 114 Stat. 2096 (2000) (to be codified as amended at 38 C.F.R. § 5107); Gilbert, supra. ORDER Entitlement to service connection for a cardiovascular disorder, to include hypertension, is denied. Gary L. Gick Member, Board of Veterans' Appeals