Citation Nr: 1011231 Decision Date: 03/25/10 Archive Date: 04/07/10 DOCKET NO. 08-32 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hypertension, including as secondary to medication for the Veteran's service- connected knees, ankle, and back. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1974 until June 1979 and from April 1982 until August 1998. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that the June 2007 rating decision included several decisions, including grants of increased ratings for the Veteran's service-connected bilateral knees, to 10 percent disability ratings bilaterally, and a denial of service connection for a lung disorder. The June 2007 rating decision also deferred the adjudication of several issues, including a claim for an increased rating for the Veteran's service-connected chronic lumbosacral strain. The deferred issues were adjudicated by a September 2007 rating decision. The Veteran only submitted one notice of disagreement, in November 2007, in regards to the bilateral knees, hypertension, lung disorder, and back pain. The RO issued a Statement of the Case, in October 2008, in regards to those claims. The Veteran did not file a substantive appeal in regards to the bilateral knee or back claims; they are thus not currently before the Board. Furthermore, although the Veteran appealed the denial of service connection for a lung disorder, a May 2009 rating decision granted service connection for that disorder. The May 2009 rating decision was a full grant of that claim. As such, the claim for service connection for a lung disorder is also not currently before the Board. The Veteran also requested a hearing before a member of the Board, which was scheduled for October 2009. The Veteran submitted an October 2009 statement indicating that he wished to cancel the hearing, but continue the appeal. As such, the Veteran is deemed to have withdrawn his request for a hearing. See 38 C.F.R. § 20.704(e). FINDING OF FACT Resolving the benefit of the doubt in the Veteran's favor, the evidence of record indicates that the Veteran likely manifested hypertension to a compensable degree within one year of separation from active duty. CONCLUSION OF LAW The criteria for the establishment of service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307(a)(3), 3.309(a) (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Applicable Law Under applicable law, direct service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). That an injury or event occurred in service alone is not enough. There must be chronic disability resulting from that injury or event. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires that the evidence establish: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection can also be granted when a disability is the proximate result of or due to a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additionally, the aggravation of a non-service- connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service connected disability. Id. In addition, service connection may be granted on a presumptive basis for certain chronic diseases, such as hypertension, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For purposes of determining whether hypertension manifests to a compensable degree - if found to exist within a year of discharge from active duty - reference to 38 C.F.R. § 4.104, Diagnostic Code 7101 is necessary. Under this regulation, the minimum 10 percent rating is assigned when diastolic pressure is predominately 100 or more and systolic pressure is 160 or more; or; minimum evaluation for an individual with a history of diastolic pressure is predominately 100 or more who requires continuous medication. The benefit of the doubt rule provides that the Veteran will prevail when the positive and negative evidence are at a relative balance. Therefore, the Veteran prevails when the weight of the evidence either supports the claim or is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Merits of the Claim The Veteran contends that his blood pressure was either caused or aggravated by the use of the drug Celebrex, which was prescribed to treat his service-connected arthritis of the knees and back, as indicated in his November 2009 VA Form 9 and his October 2009 Informal Hearing Presentation. He has also indicated, in an October 2007 statement, that his hypertension was only due to or aggravated by his use of Celebrex, and not his service. In a May 2007 statement, the Veteran reported that he would frequently have high blood pressure during the later years of service, but that it was not significant enough to address at that time. The Veteran further reported that following service, his blood pressure was generally good, until he started taking Celebrex in June 2004 for his service related knee, shoulder, and ankle pain. He further reported that his blood pressure began to increase until November 2005, when he was prescribed blood pressure medication. The Veteran's service treatment records generally indicated some elevated blood pressure readings, but no complaints or diagnoses of hypertension. The Veteran's May 1998 retirement examination noted a blood pressure of 132/80. Private medical records from during his service similarly indicated some elevated blood pressure readings, such as a December 1995 Frederick Memorial Hospital note reporting a blood pressure reading of 146/98. Within a year of his separation from service, the Veteran was provided a general VA examination in July 1999. The examiner noted that the Veteran had a blood pressure of 158/95, but did not make a finding regarding the high blood pressure or hypertension. A November 2000 U.S. Army Health Clinic (USAHC) note indicated a blood pressure of 161/100. A January 2001 USAHC note indicated blood pressures ranging from 124/92 to 136/90. A March 2001 USAHC note indicated a blood pressure of 142/95. An April 2005 private medical record, from the Mountain State Health Alliance indicates that the Veteran was taking Celebrex. His blood pressure at that time was 126/92. A November 2005 USAHC note indicated high blood pressure as a chief complaint; the Veteran had a diagnosis of it at that time. A March 2006 VA outpatient treatment record noted a blood pressure reading of 138/78. The VA examiner made no findings regarding high blood pressure. An April 2006 VA outpatient treatment record did not indicate that the Veteran had high blood pressure among his active problems. An April 13, 2006 VA outpatient treatment record noted a blood pressure reading of 135/85. A May 2006 VA medical record noted that the Veteran had a blood pressure of 151/100. That record also indicated that the Veteran was taking Celebrex at that time. A June 8, 2006 VA outpatient treatment record only listed arthritis as an active problem. A June 8, 2006 nurse assessment similarly found the Veteran to have a blood pressure of 126/94. An August 10, 2006 VA medical record noted that the Veteran had a blood pressure of 148/99. Another, VA medical record recorded his blood pressure as 128/82 later that day. An August 16, 2006 VA podiatry clinic note indicated that the Veteran's active problems included hypertension. Subsequent VA outpatient treatment records generally indicate continued treatment for blood pressure. For example, a March 2008 VA outpatient treatment record noted that the Veteran's blood pressure was generally running 130-140 over 90-100 and that it was creeping. VA provided a VA hypertension examination in April 2009, which included a review of the claims file. Initially, the examiner reported the Veteran's history that the onset of the Veteran's high blood pressure was in 2004, and that the Veteran began Celebrex for arthritis a few months later and began to have elevated blood pressure. The examiner noted that the Veteran contended that his hypertension began or worsened after taking Celebrex for his service-connected degenerative joint disease. The examiner opined that USAHC notes from 2000 through 2001 showed a probable diagnosis of hypertension, with treatment with medication. The record does not indicate that the Veteran's high blood pressure developed secondary to his service-connected degenerative joint disease, due to his use of Celebrex. No medical opinions are of record indicating such a finding. In contrast, the April 2009 VA examiner specifically found that the Veteran had high blood pressure prior to his use of Celebrex and that it did not cause or aggravated his existing high blood pressure. However, the April 2009 VA examiner opined that the USAMC records indicated probable high blood pressure in 2000 and 2001. The July 1999 VA examination blood pressure finding was consistent with the high blood pressure readings taken the following year at the USAMC. The record indicates that during service, the Veteran had variable blood pressure levels, including several elevated readings. Additionally, within a year of his separation from service, he had a high blood pressure reading, as indicated in the July 1999 VA examination, which was close to indicating hypertension at a compensable level under Diagnostic Code 7101. Though not clearly meeting a level for a compensable rating for an individual with a diastolic pressure predominantly 100 or more, or systolic pressure 160 or more, or a history of diastolic pressure predominantly 100, under Diagnostic Code 7101, the July 1999 VA examination provided a rating close to those levels, with a finding of 158/95. The July 1999 VA examination was the only blood pressure reading of record taken within a year of the Veteran's discharge from service. However, there is significant evidence of elevated blood pressure readings documented in the Veteran's STR's. Moreover, as previously indicated, his USAMC records beginning in 2000, less than two years following his discharge from service, also indicated high blood pressure readings, with diastolic pressures consistently indicated as 90 or more. The April 2009 VA examiner found the Veteran to have a probable diagnosis of hypertension, as indicated by his USAMC records. The April 2009 VA examiner did not provide an opinion regarding the July 1999 VA examination blood pressure finding; however, the Board notes that the July 1999 VA examination finding was consistent with the USAMC findings. The April 2009 VA examiner found the Veteran to have hypertension and based that finding on high blood pressure readings consistent with the July 1999 VA examination finding. Additionally, the July 1999 VA examination's finding was very close to consistent with a compensable disability rating for hypertension, under Diagnostic Code 7101. Given that the Veteran also had elevated blood pressure readings in service, which based on the evidence of record, increased in the year after service, and providing the Veteran with the benefit of the doubt with the level of blood pressure readings, the Board finds that the evidence is at least at equipoise to indicate that the Veteran may have had high blood pressure to a compensable level within a year of his discharge and service connection is granted on a presumptive basis. ORDER Service connection for hypertension is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs