Citation Nr: 0944395 Decision Date: 11/20/09 Archive Date: 11/25/09 DOCKET NO. 06-34 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension. 3. Entitlement to service connection for hiatal hernia with gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service September 1979 to September 1982. The Veteran also had active service in the Alabama Army National Guard (ALANG) from January 2004 to February 2006, with service in support of Operation Enduring Freedom from February 2004 to February 2005. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2006 by the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO). The Veteran requested a hearing before a decision review officer in connection with the current claims. The hearing was scheduled and subsequently held in March 2007. The Veteran testified at that time and the hearing transcript is of record. The Veteran also requested a Travel Board hearing in this case. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at the March 2008 hearing, and the transcript is of record. The Veteran's claims were previously before the Board in June 2008 and remanded at that time for additional evidentiary development. FINDINGS OF FACT 1. Hypertension was noted in medical records greater than one year after discharge from the Veteran's first period of active service (i.e., September 1979 to September 1982), but prior to his second period of active service (i.e., January 2004 to February 2006). 2. Clear and unmistakable evidence demonstrates that the Veteran's hypertension existed prior to his second period of active service (i.e., January 2004 to February 2006), and did not undergo a permanent worsening during active duty. 3. Erectile dysfunction was not present during either period of active service and any current erectile dysfunction is not attributable to any event, injury or disease during service. 4. Erectile dysfunction was attributed to the Veteran's use of medication to control his non-service-connected hypertension and hyperlipidemia. 5. Hiatal hernia with GERD was noted in medical records greater than one year after discharge from the Veteran's first period of active service (i.e., September 1979 to September 1982), but prior to his second period of active service (i.e., January 2004 to February 2006). 6. Clear and unmistakable evidence demonstrates that the Veteran's hiatal hernia with GERD existed prior to his second period of active service (i.e., January 2004 to February 2006), and did not undergo a permanent worsening during active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2009). 2. The criteria for entitlement to service connection for erectile dysfunction, to include as secondary to hypertension, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2009). 3. The criteria for entitlement to service connection for hiatal hernia with gastroesophageal reflux disease have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Establishing Service Connection Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2009). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). According to 38 C.F.R. § 3.309(a) (2009), service connection for certain disabilities, including hypertension, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. 38 C.F.R. § 3.310(a). According to Allen v. Brown, 7 Vet. App. 439 (1995), secondary service connection may be found where a service connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). Generally, Veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides: [E]very Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2009). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. According to 38 U.S.C.A. § 1153 (West 2002), a "preexisting injury or disease will be considered to have been aggravated by active . . . service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. 38 C.F.R. §§ 3.303(c), 3.304(b) (2009); see also Crowe v. Brown, 7 Vet. App. 238 (1994). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2009). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (2009). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). II. Factual Background and Analysis The Veteran in this case contends that his currently diagnosed hypertension and hiatal hernia with GERD existed prior to his period of active duty in the ALANG (i.e., January 2004 to February 2006) and was aggravated by this service. The Veteran also asserts that his currently diagnosed erectile dysfunction manifested during his period of active duty in the ALANG and/or is secondary to medications prescribed for hypertension. Service treatment records (STRs) associated with the Veteran's first period of active service (i.e., September 1979 to September 1982) are completely negative for a diagnosis of or treatment for hypertension, hiatal hernia with GERD, or erectile dysfunction. The Veteran was afforded a clinical evaluation and physical examination in April 1999. It was noted that the Veteran had well-controlled hypertension at that time for which he was prescribed medication. A notation on a report of medical history dated that same month indicated that the Veteran's hypertension was diagnosed one year prior to this examination. The Veteran further stated in a December 1999 annual medical certificate that he took Cozaar at that time for "blood pressure." Similarly, the Veteran stated at the time of a January 2001 annual medical certificate that he took Prilosec "for stomach" and Cozaar for "hypertension." The Veteran was subsequently afforded a clinical evaluation and physical examination in August 2001 and it was noted at that time that the Veteran had hypertension for which he was prescribed medication. Associated with the claims file is an October 2003 statement from K. Koehler, M.D. Dr. Koehler indicated that the Veteran currently took Prilosec (40 mg) and Diovan HCT (160- 12.5 mg) daily. In addition to taking these medications, the Veteran stated in a November 2003 annual medical certificate, that (1) his dosage of Diovan HCT was increased (160-25 mg) and (2) that he also took medication for an ulcer (diagnosed in 1993), but that both the ulcer and his hypertension were well-controlled. The Veteran presented in January 2004 for a blood pressure medication refill and check-up. His blood pressure was interpreted to be 142/92. The examiner noted that that time that the Veteran's dosage of Diovan HCT was recently increased. The impression was hypertension and peptic ulcer disease (PUD). A follow-up blood pressure reading taken that same month was interpreted to be 133/84. The Veteran was also afforded a pre-deployment health assessment in August 2004. It was noted that the Veteran had hypertension at that time. Subsequent blood pressure readings taken in October 2004 and December 2004 were 128/86 and 137/84, respectively, with the prescribed medication Diovan (160 mg) only. The Veteran was afforded a post-deployment demobilization examination in January 2005. A notation on the report of medical assessment revealed that the Veteran took Prilosec (40 mg) and Diovan (160 mg). His blood pressure was interpreted to be 151/92 and he was cleared for demobilization at that time. The Veteran sought additional private care from Dr. Koehler in May 2005 for hypertension. It was noted at that time that the Veteran took Diovan (160 mg) daily to control this condition. The Veteran's blood pressure was interpreted to be 160/80. The impression was "essential hypertension - unchanged." Dr. Koehler restarted the Veteran on Diovan HCT (160-25 mg). An August 2005 follow-up visit to Dr. Koehler showed the Veteran's blood pressure to be 110/70. Dr. Koehler noted that he had not seen the Veteran earlier since he was also serving in Southwest Asia and did not return to his practice until May 2005. The Veteran was afforded a clinical evaluation and physical examination in August 2005. The Veteran's past medical history was significant for hypertension and his blood pressure was interpreted to be 130/84, 137/86, and 125/77. The examiner noted that the Veteran's blood pressure was well-controlled. Follow-up visits to Dr. Koehler in February and July 2006 showed that the Veteran's blood pressure was 130/90 and 120/80, respectively. The impression was unchanged essential hypertension and Dr. Koehler elected to continue the Diovan HCT (160-25 mg). The Veteran also reported some erectile dysfunction for which he was prescribed medication. The Veteran was afforded a VA general medical examination (GME) in May 2006. The examiner noted at that time that the Veteran took Diovan (160 mg) and Prilosec (40 mg) daily. The Veteran provided a past medical history in which he reported having hypertension since 1999, but denied any side-effects from the medication. He also reported having a hiatal hernia with GERD that was diagnosed by a private doctor that same year. The Veteran indicated that he was symptom-free when taking Prilosec and that he gained approximately 40 pounds in the past year. The Veteran also stated that he experienced erectile dysfunction after adding cholesterol medication to his blood pressure medication upon returning from Iraq. He reported some success with an erectile dysfunction medication. Upon physical examination, the Veteran's blood pressure was interpreted to be 134/76, 127/81, and 124/80. The impression was hypertension and erectile dysfunction, as well as hiatal hernia and GERD, by history, among other conditions. The Veteran presented to a VA medical facility in August 2006 for a primary care appointment. He reported a past medical history significant for hypertension, erectile dysfunction, and GERD, among other conditions. According to the Veteran, his erectile dysfunction began when he started blood pressure medication. A physical examination revealed no gastrointestinal abnormalities. The impression was essential hypertension, erectile dysfunction, and GERD. The examiner discontinued the Veteran's hydrochlorothiazide (HCTZ) prescription, added Lisinopril (40 mg), and noted that the GERD was stable on the current medications. Subsequent blood pressure readings taken in August 2006, March 2007, and June 2007 were 128/64, 134/76, and 110/66, respectively. In correspondence received in October 2006, the Veteran's spouse, sister-in-law, and brother stated that since returning from Iraq, the Veteran's physician increased the dosage of blood pressure medication to the highest allowable amount to control this condition. They also indicated that the medication caused sexual impairment. The Veteran testified before a DRO in March 2007 in connection with the current claims. With regard to the issues of hypertension and erectile dysfunction, the Veteran stated that he was diagnosed as having hypertension in 1999, but only took prescribed medication for three months because of dizziness. He further stated that he was prescribed Diovan (40 mg) shortly before his deployment and that military physicians increased the dosage to 160 mg prior to travel to Iraq. The Veteran also indicated that he experienced sexual impairment after service and was prescribed medication for erectile dysfunction. With regard to the issue of hiatal hernia with GERD, the Veteran testified that he was diagnosed as having acid reflux in 1999 for which he was prescribed Prilosec. In addition, the Veteran stated that he "hadn't hurt" since taking Prilosec "to this day," but that his symptoms became worse since service. The Veteran was subsequently afforded a VA Compensation and Pension (C&P) examination in June 2007. The examiner reviewed the claims file and summarized the history and treatment of the Veteran's hypertension, erectile dysfunction, hiatal hernia, and acid reflux. Upon physical examination, the Veteran's blood pressure was 126/82, 130/76, and 120/82. The examiner noted that the Veteran's blood pressure and renal function were normal. The impression was (1) hypertension, first elevation noted as early as 1990 with treatment beginning in 1998; (2) erectile dysfunction, started in 2005 secondary to medication for hypertension and hyperlipidemia; (3) GERD, diagnosed following coffee ground emesis in 2001, on Prilosec with good control. The examiner, however, was unable to provide an opinion regarding the issue of aggravation of the Veteran's hypertension, erectile dysfunction, or GERD without resorting to mere speculation. The Veteran testified before the undersigned AVLJ in March 2008. Specifically, the Veteran's representative challenged the adequacy of the June 2007 VA examination and restated the contention that the hypertension became more severe during active service. In addition, the Veteran stated that the erectile dysfunction manifested after service as a result of medications for hypertension. The Veteran also stated that his gastrointestinal symptoms worsened as well. The Veteran resubmitted the October 2006 statements from his wife and brother, along with a waiver of RO consideration. Also associated with the claims file is a statement dated April 2008 from D.B., a human resources supervisor at the Veteran's place of employment. D.B. stated that the Veteran's "medical restrictions" necessitated a change in his job duties. The Veteran was subsequently afforded another VA C&P examination in October 2008. The Board notes that this examination was conducted by the same provider who conducted the June 2007 examination. With respect to the Veteran's hypertension, the examiner stated: In summary, some pre-treatment blood pressure readings recorded, 160/100, 151/102; between January 2005 to February 2005 (active duty) blood pressure ranged from 125-151/80-92, was on Diovan-HCT or Diovan; after release from active duty, from May 2005 to February 2006, bp [blood pressure] ranged 110-160/70-90 was on Diovan-HCT. Normal renal functions and negative stress test. Throughout doctor visits with Dr. Koehler, notes mention hypertension unchanged or well- controlled. Based on the above findings, basically there has been no significant change in hypertension whether he was on Diovan- HCT, Diovan, or Hydrochlorothiazide separately or Diovan alone. However, no bp readings between February of 2005 to May of 2005 were documented and so if there was any aggravation it was not noted. Hence, to give Veteran benefit of a doubt, examiner stated could not assess or evaluate the aggravation without resorting to mere speculation. With regard to the Veteran's erectile dysfunction, the examiner noted that this condition was first noted in a private treatment note dated May 2005. The examiner also observed that the Veteran was prescribed Vytorin for hyperlipidemia in November 2005. Based on this evidence, the examiner concluded that the Veteran's erectile dysfunction symptoms manifested after service and that the Veteran's hypertension medication was changed while additional medication for hyperlipidemia was added. The examiner also noted that the Veteran achieved some success with erectile dysfunction medications. Accordingly, the examiner concluded that the Veteran's erectile dysfunction was "at least as likely as not" related to his anti- hypertensive medication. With regard to the Veteran's GERD, the examiner commented only that the dosage of Prilosec was 40 mg twice per day in January 2004, prior to the start of active duty, and that the dosage remained the same since that time. He also noted that the medication was successful in controlling the Veteran's GERD. Given the complexity of the current claims, VA subsequently requested a Veterans Health Administration (VHA) medical opinion. See July 2009 VHA examination report. Following a thorough review of the claims file, the examiner concluded that it was "very likely" that the Veteran's hypertension and reflux/hiatal hernia "were most likely present and existed prior to his period of active service from January 2004 to Feb[ruary] 2006." In support of this contention, the examiner observed that STRs referenced hypertension between 1990 and 1998, while a stomach ulcer was diagnosed in 1993. Concerning the issue of aggravation, the examiner noted that the Veteran "had medication changes due to duty stations, when medications were available." However, the examiner found no evidence that the Veteran's hypertension and/or hiatal hernia/GERD worsened beyond the natural progress of the disease. In this regard, the examiner indicated that while the evidence of record "mentioned" these conditions and their symptoms, there was no indication that the conditions worsened significantly or dramatically, particularly where, as here, there was no evidence that an increase in the conditions was the result of any aspect of active service. Rather, the examiner noted that both conditions waxed and waned through out the Veteran's military career. A. Hypertension Given the evidence of record, the Board concludes that the Veteran's hypertension clearly and unmistakably existed prior to his second period of active service (i.e., January 2004 to February 2006). As noted above, STRs from the Veteran's first period of service (i.e., September 1979 to September 1982) are completely negative for a diagnosis of or treatment for hypertension. There is also no evidence of this condition within one year after discharge from the Veteran's first period of active service. On the contrary, VA and private treatment records associated with the claims file indicated that the Veteran had hypertension, possibly as early as 1990. In any event, the Veteran was found to have well-controlled hypertension at the time of an April 1999 service examination for which he was prescribed medication. A notation on the examination report indicated that the Veteran's hypertension was diagnosed one year prior to this examination (i.e., 1998). Subsequent medical histories provided by Veteran, as well as the July 2009 VHA opinion, support the contention that the Veteran's hypertension clearly and unmistakably existed prior to his second period of active service. See October 2008 VA C&P examination report (noting that, according to the Veteran, he was diagnosed as having hypertension in 1998 or 1999); see also July 2009 VHA examination report (concluding that it was "very likely" that the Veteran's hypertension existed prior to his second period of active service). Thus, the Board finds that the Veteran's hypertension clearly and unmistakably existed prior to his second period of active service. With this question settled, the Board must next determine whether the Veteran's hypertension was aggravated (i.e., permanently worsened) by service beyond the natural progression of the disease. The Board finds that there is also clear and unmistakable evidence of record to show that the Veteran's preexisting hypertension did not increase in severity beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Temporary or intermittent flare- ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. See Hunt, supra. Medical evidence of record showed that the Veteran was prescribed blood pressure medication as early as April 1999, and in October 2003, Dr. Koehler indicated that the Veteran took Diovan HCT (160-12.5 mg) daily. The Veteran subsequently reported that his dosage of Diovan HCT was increased (160-25 mg). See November 2003 annual medical certificate. Although the use of the diuretic component was later made separate and optional by military examiners during the Veteran's service in Iraq, the Diovan component (160 mg) remained largely unchanged, and STRs showed predominantly normal blood pressure readings with evidence of one slightly elevated measurement at the time of the January 2005 demobilization examination. See e.g., VA and private treatment records dated November 2003, January 2005, May 2005, and July 2006. Furthermore, even though no blood pressure readings were obtained between February and March 2005, Dr. Koehler noted that the Veteran's essential hypertension remained unchanged and returned the Veteran to the Diovan HCT combination prescribed in November 2003. See February and July 2006 private treatment notes. The Board acknowledges the Veteran's March 2007 DRO hearing testimony in which he indicated that the dosage of Diovan was increased from 40 mg to 160 mg prior to deployment. The Board finds that the Veteran's statements in this regard lack credibility, particularly where, as here, the Veteran's statements are contradicted by the evidence of record. The Board concedes that the Veteran's hypertension medications were changed prior to mobilization, but the only modifications made pertained to the diuretic component (HCT) and were dictated by his service in a desert environment in order to avoid dehydration. After demobilization, the Veteran's hypertension medication was continued at the same dosage and it was noted that the condition was well- controlled. Moreover, the Board finds the July 2009 VHA medical opinion to be highly probative evidence on the issue of aggravation. Following a thorough review of the claims file, the examiner noted that the Veteran "had medication changes due to duty stations, when medications were available." However, the examiner found no evidence that the Veteran's hypertension worsened beyond the natural progress of the disease. In support of this contention, the examiner indicated that while the evidence of record "mentioned" this condition, there was no indication that the condition worsened significantly or dramatically, particularly where, as here, there was no evidence that an increase in the condition was the result of any aspect of active service. Rather, the examiner noted that the condition waxed and waned through out the Veteran's military career. The United States Court of Appeals for the Federal Circuit has held that the Board is not required to use statutory language or "terms of art" such as "clear and unmistakable evidence" when rebutting the presumptions of soundness and aggravation. See Jennings v. Mansfield, 509 F.3d 1362, 1366 (2007). The examiner in this instance stated that he "could not find any evidence" that the Veteran's hypertension worsened beyond the natural progression of the disease. In reaching this conclusion, the examiner relied on his professional training, specialized expertise, and a thorough review of the claims file. Although the examiner failed to use the term "clear and unmistakable evidence" in determining that the Veteran's hypertension did not undergo a permanent increase in severity during his time in service, the Board finds that in light of the Jennings opinion and in the full context of the evidence described above, the examiner's use of the phrase "could not find any evidence of" worsening beyond the natural progression of the disease illustrates that the examiner believed that his assessment was undebatable. See generally, Lee v. Brown, 10 Vet. App. 336, 339 (1997). Accordingly, the Board concludes that the medical evidence of record constitutes clear and unmistakable evidence that the Veteran's hypertension existed prior to service and was not aggravated by service. B. Erectile Dysfunction Given the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection for erectile dysfunction in this case on any basis. STRs associated with the claims file are completely negative for a diagnosis of or treatment for erectile dysfunction from either period of active service. The first evidence of pertinent disability, as evidenced by private treatment records, is February 2006, after the Veteran's discharge from his second period of active service. The Veteran does not allege in this case, nor does the evidence of record show, that the erectile dysfunction is attributable to any event, injury or disease during service on a direct basis. As an alternative to establishing the second and third prong in Hickson, the Veteran may show a continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997)). Continuity of symptomatology may be established if (1) the condition was "noted" during service; (2) there is evidence of post-service continuity of the same symptomatology; and (3) there is medical, or in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. The evidence of record does not establish continuity of symptomatology in this case. The Veteran was not diagnosed with erectile dysfunction in service. There is no evidence of continuity of symptoms after discharge from service, aside from the Veteran's own statements. However, the Veteran stated as recently as June 2007 he was able to maintain an erection long enough to engage in intercourse, but that "it wasn't satisfactory." The Board also notes that the Veteran derived some benefit from erectile dysfunction medication. There is also no evidence linking the currently diagnosed erectile dysfunction to service. Consequently, the Board finds that the Veteran failed to establish continuity of symptomatology in this case. In view of the absence of pertinent disability until after service, relating the Veteran's erectile dysfunction to service on a direct basis would certainly be speculative, particularly where, as here, medical evidence attributed this condition to the Veteran's use of anti-hypertensive medication. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. As previously stated, entitlement to direct service connection requires a finding that there is a current disability that has a relationship to an in-service injury or disease. In this case, there is medical evidence showing a diagnosis of erectile dysfunction, but there is no evidence to link this condition, which occurred after discharge from service, to either of the Veteran's periods of active service. Thus, the Board concludes that the Veteran's claim of service connection for erectile dysfunction must be denied on a direct basis. In the alternative, the Veteran contends that the erectile dysfunction is secondary to medications used to manage his hypertension. As noted above, service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. Secondary service connection may be found where a service connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). See Allen, supra. The Board is aware that the October 2008 VA C&P examiner concluded that the Veteran's erectile dysfunction symptoms manifested after service and that the Veteran's erectile dysfunction was "at least as likely as not" related to his anti-hypertensive medication. Despite this favorable opinion, service connection for erectile dysfunction is not warranted on a secondary basis in this instance because the Veteran is not service connected for hypertension. Accordingly, the Veteran's claim of service connection for erectile dysfunction must be denied on a secondary basis. C. Hiatal Hernia / GERD Given the evidence of record, the Board concludes that the Veteran's hiatal hernia with GERD clearly and unmistakably existed prior to his second period of active service (i.e., January 2004 to February 2006). As noted above, STRs from the Veteran's first period of service (i.e., September 1979 to September 1982) are completely negative for a diagnosis of or treatment for hiatal hernia with GERD. There is also no evidence of this condition within one year after discharge from the Veteran's first period of active service. On the contrary, service treatment records associated with the claims file indicated that the Veteran was treated for an ulcer in 1993. The Veteran also indicated in a January 2001 annual medical certificate that he took Prilosec "for stomach" and it was further noted that his ulcer was well- controlled at the time of a November 2003 private examination. Hearing testimony provided by Veteran in March 2007 also revealed that he was treated for acid reflux in 1999. The Board also finds the July 2009 VHA opinion to be highly probative evidence that the Veteran's hiatal hernia with GERD clearly and unmistakably existed prior to his second period of active service. In particular, the examiner concluded that it was "very likely" that the Veteran's hiatal hernia/reflux existed prior to his second period of active service. Thus, the Board finds that the Veteran's hiatal hernia with GERD clearly and unmistakably existed prior to his second period of active service. With this question settled, the Board must next determine whether the Veteran's hiatal hernia with GERD was aggravated (i.e., permanently worsened) by service beyond the natural progression of the disease. The Board finds that there is also clear and unmistakable evidence of record to show that the Veteran's preexisting hiatal hernia with GERD did not increase in severity beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. See Hunt, supra. Preliminarily, the Board acknowledges that the Veteran expressed his own opinion that his gastrointestinal condition increased in severity after service. However, the Board finds that such statements made by the Veteran are entitled to limited probative weight because these contentions are not supported by the medical evidence of record, nor are they consistent with the Veteran's statements to his medical providers. For instance, Dr. Koehler noted in November 2003 that the Veteran took Prilosec (40 mg) daily and that, as a result, his ulcer was well-controlled. On one occasion, prior to the start of active duty in January 2004, the Veteran was prescribed a medication other than Prilosec, but this medication was not successful in treating his symptoms. The Veteran restarted the Prilosec at an increased dosage (40 mg twice daily) and this regimen was maintained through out the duration of the Veteran's second period of active service. See November 2003 annual medical certificate. After demobilization, the Veteran's reflux medication was continued at the same dosage, or possibly reduced, and no complaints were noted at that time. Furthermore, the Veteran testified in March 2007 that he began taking Prilosec in 1999 and "hadn't hurt since then." Moreover, the Board finds the July 2009 VHA medical opinion to be highly probative evidence on the issue of aggravation. Following a thorough review of the claims file, the examiner noted that the Veteran "had medication changes due to duty stations, when medications were available." However, the examiner found no evidence that the Veteran's hiatal hernia / reflux worsened beyond the natural progress of the disease. In support of this contention, the examiner indicated that while the evidence of record "mentioned" this condition but, there was no indication that the condition worsened significantly or dramatically, particularly where, as here, there was no evidence that an increase in the condition was the result of any aspect of active service. Rather, the examiner noted that the condition waxed and waned through out the Veteran's military career. The examiner in this instance stated that he "could not find any evidence" that the Veteran's hiatal hernia / reflux worsened beyond the natural progression of the disease. In reaching this conclusion, the examiner relied on his professional training, specialized expertise, and a thorough review of the claims file. Although the examiner failed to use the term "clear and unmistakable evidence" in determining that the Veteran's hiatal hernia / reflux did not undergo a permanent increase in severity during his time in service, the Board finds that in light of Jennings, supra, and in the full context of the evidence described above, the examiner's use of the phrase "could not find any evidence of" worsening beyond the natural progression of the disease illustrates that the examiner believed that his assessment was undebatable. See Lee, supra. Accordingly, the Board concludes that the medical evidence of record constitutes clear and unmistakable evidence that the Veteran's hiatal hernia with GERD existed prior to service and was not aggravated by service. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further observes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Veteran did not receive proper VCAA notice in this case. However, the Board finds that any notice errors with respect to the information and evidence needed to substantiate the Veteran's service connection claims did not affect the essential fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). In September 2006, prior to the initial unfavorable decision on the matter by the AOJ, the Veteran was informed of the information and evidence needed to substantiate service connection claims for hypertension, hiatal hernia, acid reflux, and erectile dysfunction. He was also notified of his and VA's respective duties for obtaining evidence, and advised of the type of evidence necessary to establish a disability rating and an effective date for the disabilities on appeal. The RO subsequently issued the September 2006 rating decision on appeal. He was specifically advised at that time that his hypertension, erectile dysfunction, and hiatal hernia with acid reflux existed prior to service, but that there was no evidence of record to show that the conditions were permanently worsened as a result of his service. With regard to the issue of secondary service connection, it was noted that there was no evidence that the Veteran's erectile dysfunction was secondary to his blood pressure medication because although he began taking this medication in 1999, the Veteran denied any side-effects at the time of the May 2006 GME. Shortly thereafter, in July 2007, the RO issued a statement of the case (SOC) in which the Veteran was advised of the criteria for establishing service connection generally (38 C.F.R. §§ 3.303, 3.304), aggravation of a pre-service disability (38 C.F.R. § 3.306), and secondary service connection (38 C.F.R. § 3.310). Following this notice, the Veteran's claim was readjudicated by way of a January 2009 supplemental statement of the case (SSOC). Based on the notices provided to the Veteran, including the September 2006 notice letter, the VARO decision, the July 2007 statement of the case, and the January 2009 supplemental statement of the case, the Board finds that a reasonable person could be expected to understand what information and evidence was required to substantiate the service connection claims for hypertension, hiatal hernia with GERD, and erectile dysfunction, to include as secondary to hypertension. These documents, in conjunction with the VCAA letters, explained what information and evidence was needed to substantiate the claims, and a reasonable person would be expected to understand the information contained therein. The Board further notes that the Veteran has made specific arguments and provided testimony during the pendency of this claim indicating that his hypertension and hiatal hernia with GERD were permanently worsened by his service. He also expressed his opinion that his erectile dysfunction was secondary to blood pressure medications. See July 2006, November 2006, March 2007, August 2007, March 2008, and January 2009 statements and hearing testimony. Moreover, the Board notes the Veteran has had representation throughout the duration of the appeal. See Overton, 20 Vet. App. at 438 (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). In sum, the Board finds that there is no prejudice with regard to any deficiency in the notice to the Veteran or the timing of the notice. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues has been obtained. The Veteran's service treatment and post-service treatment records were obtained. The Veteran was also afforded multiple VA examinations in connection with the claims currently on appeal. The Board is aware that the Veteran's representative requested that VA obtain an independent medical examination (IME) on the grounds that the July 2009 VHA opinion failed to contain a "scientific basis" concerning the issue of aggravation. See September 2009 informal hearing presentation (IHP). The Board finds that this kind of examination is unwarranted in the present case. As discussed above, the examiner thoroughly reviewed the claims file and relied on his professional training and specialized expertise prior to rendering an opinion on the issue of aggravation. In this regard, the examiner cited to specific evidence of record to show that the Veteran's hypertension and hiatal hernia with GERD remained essentially static without evidence of worsening beyond the natural progression of the diseases. See also Jennings, supra. Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to- assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). ORDER Service connection for hypertension is denied. Service connection for erectile dysfunction, to include as secondary to hypertension, is denied. Service connection for hiatal hernia with GERD is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs