Citation Nr: 1220017 Decision Date: 06/07/12 Archive Date: 06/20/12 DOCKET NO. 09-14 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected migraine headache disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from November 1986 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in which the RO denied the Veteran's claim for service connection for hypertension. The Board notes that the Veteran filed claims for increased ratings for service-connected major depressive disorder and migraine headache disability. Although the RO issued a rating decision pertaining to the evaluation of major depressive disorder in October 2008, the RO or agency of original jurisdiction (AOJ) has not adjudicated the claim for an increased rating for migraine headache disability. Therefore, it is not before the Board and is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Hypertension has not been shown by diastolic blood pressure readings predominately 90 mm or greater; and isolated systolic hypertension has not been shown by systolic blood pressure predominately 160 mm or greater with diastolic blood pressure of less than 90 mm. 2. The Veteran is taking Atenolol, a blood pressure medication, for migraine prevention; to the extent hypertension has been noted in the medical record, it is unrelated to service-connected disease or injury. CONCLUSION OF LAW Hypertension is not proximately due to (causation or aggravation) or the result of a service-connected disease or injury. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the RO provided the Veteran with the notice required under the VCAA in a pre-rating letter dated in October 2007. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs), and all of the identified post-service treatment records. The Board points out that the Veteran has not been provided with a VA examination as to the nature and etiology of her claimed hypertension. Under the VCAA, VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). Here, as will be explained below, although the Veteran is taking a high blood pressure medication to treat her service-connected migraine headaches, there is no evidence suggesting that she has hypertension secondary to migraine headaches. Furthermore, the Veteran does not allege and the evidence does not suggest that hypertension was otherwise incurred in service or within one year of service. Under these circumstances, the Board finds that a VA examination is not required, even under the low threshold of McLendon. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for service connection is thus ready to be considered on the merits. Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.307(d). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice- connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The amendment is to be applied prospectively as it is more restrictive; it is not for application in the present claim because it was filed in September 2007. VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis In this case, the Veteran does not assert nor does the evidence show that hypertension became manifest in service or within one year of discharge. Rather, the Veteran asserts that she has hypertension secondary to her service-connected migraine headaches. The Board has thoroughly reviewed the Veteran's medical records since service, but does not find any diastolic blood pressure readings 90 mm or greater nor any systolic blood pressure readings 160 mm or greater. Systolic blood pressure readings have ranged from 108 mm to 147 mm and diastolic blood pressure readings have ranged from 63 mm to 89 mm. As noted above, under VA regulation, hypertension means diastolic blood pressure predominately 90 mm. or greater and isolated systolic hypertension means systolic blood pressure predominately 160 mm. or greater with diastolic pressure of less than 90 mm.. This must be confirmed by readings taken two or more times on at least three different days. In this case hypertension or isolated systolic hypertension has not been shown by blood pressure readings; however, there are several notations in the record that indicate the Veteran has hypertension. Although there is some discrepancy in the record, it appears that the Veteran is taking Atenolol, a blood pressure medication, to treat her migraine headaches. A February 2007 VA treatment record notes that she was started on a trial of Atenolol for migraine prevention; however, a February 2008 list of active outpatient medications includes Atenolol "for blood pressure." A November 2008 physician note indicates that the Veteran's Atenolol was for headaches. A March 2009 nursing note indicates the Veteran reported that she was taking blood pressure medication for headaches, but not for blood pressure. In May 2009, however, it was noted that she had a past medical history of hypertension and was issued a home blood pressure monitor. A July 2009 record notes hypertension with Atenolol treatment as a cardiovascular risk factor. It appears that the Veteran may have been presumed to have had hypertension based on the treatment of migraine headaches with Atenolol. In any event, hypertension has not been shown by blood pressure readings and even assuming the Veteran has hypertension, there is no evidence suggesting any link (causation or aggravation) with her migraine headaches. The Board has considered the Veteran's general averments that she is entitled to service connection for hypertension on a secondary basis. Implicit in the claim is her belief that she has hypertension related to her service-connected migraine headaches. The Board notes that VA treatment records indicate a past medical history of hypertension and the Veteran is certainly competent to relay what physicians have told her in terms of having hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Here, however, the Veteran's blood pressure readings indicate that she has not had hypertension as defined by VA regulation. The Board finds that the blood pressure readings are more probative in this case because they represent objective measurements taken by skilled medical professionals. Furthermore, to the extent the Veteran attributes her hypertension to her migraine headaches, she is not competent to provide an opinion as to etiology because she does not possess any medical training or expertise. See Jandreau, supra. The question of etiology of hypertension goes beyond a simple and immediately observable cause-and-effect relationship, and, as such, she is not competent to render an opinion on etiology in this particular case. In sum, the preponderance of the evidence shows that the Veteran does not have hypertension as defined by VA regulation. To the extent hypertension has been noted in the medical record, there is no evidence of a relationship (causation or aggravation) between hypertension and her service-connected migraine headache disability. Therefore, the preponderance of the evidence is against the claim for service connection. Because there is no approximate balance of positive and negative evidence, the rule affording the Veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102 (2011). ORDER Service connection for hypertension, to include as secondary to service-connected migraine headache disability, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs