Citation Nr: 1317120 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-26 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to October 1969, from October 2001 to March 2002, and from August 2002 to April 2003. He also had periods of service in the Army Reserve and Army National Guard, with periods of active duty for training (ADT), to include in March 2001, April 2001, and January 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. The Veteran testified before a Veterans Law Judge (VLJ) in October 2010. A transcript of that hearing is associated with the claims file. In April 2011, the claim was remanded for further development, including a contemporaneous VA examination regarding the etiology of the Veteran's hypertension. The claim has now been returned to the Board for additional appellate consideration. The Veteran was advised in a February 2013 letter that the VLJ before whom he had testified in October 2010 was no longer employed by the Board, and that he had the right to an additional hearing. In a February 2013 response, the Veteran indicated that he did not want to appear at an additional hearing. The following determination is based on review of the Veteran's claims file and the Virtual VA electronic claims file. FINDINGS OF FACT 1. The service medical records show normotensive blood pressure readings throughout the Veteran's first period of service from January 1968 to October 1969, and on examinations in 1974 and 1982. 2. The Veteran's hypertension did not manifest to a compensable degree with one year of his first period of active service. 3. Hypertension was initially noted in the late 1990s and medications were prescribed in approximately 2000. That diagnosis was prior to the Veteran's entry into active service in October 2001 and August 2002. 4. Hypertension clearly and unmistakably existed prior to the Veteran's periods of active service beginning in October 2001 and August 2002. 5. The preexisting hypertension clearly and unmistakably was not aggravated by service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, and service connection for hypertension may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). VA must notify a claimant of what information or evidence is necessary to substantiate a claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159 (2012). The notice requirements apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006), An April 2008 letter notified the Veteran regarding what information and evidence is needed to substantiate claims for service connection and what information and evidence must be submitted by the Veteran and what evidence VA would obtain. That letter, and an additional letter in February 2010 addressed the rating criteria and effective date provisions that are pertinent to the Veteran's claim. An additional notice letter was sent in April 2011. Regarding the duty to assist, the Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service medical records, VA examinations, post-service VA and private treatment records, and the Veteran's statements and testimony. The VA opinions and findings obtained in this case are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA nexus opinions provided consider all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Certain chronic diseases, such as cardiovascular-renal disease, including hypertension, may be service-connected on a presumptive basis if manifested to a compensable degree in a specified period of time following separation from service. For hypertension, the specified period of time is within one year following separation from service. 38 U.S.C.A. §§ 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence shows that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service to rebut the presumption of soundness on entry into service, 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. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2012); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238 (1994); Hunt v. Derwinski, 1 Vet. App. 292 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204 (1991). Hypertension means that the diastolic blood pressure is predominantly 90 or greater and isolated systolic hypertension means the systolic blood pressure is predominantly 160 or greater with diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362 (2001); Wood v. Derwinski, 1 Vet. App. 190 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998); Claiborne v. Nicholson, 19 Vet. App. 181 (2005). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30 (1993); Beausoleil v. Brown, 8 Vet. App. 459 (1996); Libertine v. Brown, 9 Vet. App. 521 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. Warren v. Brown, 6 Vet. App. 4 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms, or treatment. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Board may reject a medical opinion based on an inaccurate factual basis. Reonal v. Brown, 5 Vet. App. 458 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122 (2000). The service medical records show normotensive blood pressure readings on pre-enlistment examination in September 1967 of 120/80, on separation examination in October 1969 of 108/48, and on examinations for enlistment in the National Guard in August 1974 of 130/80, and September 1982 of 120/60. While National Guard records include a blood pressure reading of 134/90 in on an enlistment physical examination report dated in October 1995, blood pressure was recorded as 132/66 in July 2001. On annual medical certificates dated in May 1996, May 1997, June 1998, January 1999, March 2000, July 2001, and October 2001, the Veteran reported that he was on no medications. In an annual medical certificate completed in April 2002, the Veteran reported that he was taking Norvasc. His supervisor noted that he had hypertension which was well-controlled on his present medication. A May 2002 medical examination prior to the Veteran's entry into his active duty shows a blood pressure reading of 160/88. Although the Veteran had a normotensive blood pressure reading, 135/85, in July 2002, blood pressure was recorded as 138/94, 156/98, and 145/115 on three separate dates in August 2002, prior to entry into active duty. Service medical records from the Veteran's period of active duty service beginning in August 2002 show that he had a blood pressure check in October 2002, at which time his blood pressure was 162/104, although he reported that he did not take his medication that morning. He complained of slight swelling in the right leg. The assessment was varicosity and the plan was to order support stockings. The Veteran's medications at that time were Zestril and Hydrochlorothiazide. In January 2003, the Veteran's blood pressure was recorded as 137/84. His medications at that time included Lisinopril and Hydrochlorothiazide. The plan was to recheck weekly. Private treatment records from Dr. J.B. show diagnoses of and treatment for hypertension as early as May 1998, at which time the Veteran's blood pressure was normotensive, 120/84 in the left arm and 122/86 in the right arm. The pertinent assessment was hypertension, and the physician noted that blood pressure was good off medications, although the Veteran was to monitor his salt intake. Hypertension was described as stable off medication in August 1999, with readings of 138/90 in the left arm and 160/92 in the right arm). Blood pressure readings in February 2000 were 154/98 in the right arm and 146/96 in the left arm. The Veteran was started on Hydrochlorothiazide for hypertension. In June 2000, the Veteran reported that he was unable to tolerate Hydrochlorothiazide. He was started on Norvasc. His blood pressure was 146/94. The following year, in June 2001, blood pressure was recorded as 124/86. The Veteran reported that he had not been taking Norvasc, but reported good blood pressure readings. The pertinent assessment was history of hypertension, blood pressure OK off medication. In April 2002, blood pressure was recorded as 136/96. The pertinent assessment was hypertension, not well controlled, and Norvasc was increased to. The evidence shows that the Veteran was on medication for hypertension (Norvasc) prior to entry into active duty in October 2001 and August 2002. Despite his denial that he was on medications on his March 2000 annual medical certificate, the evidence shows that he had been placed on blood pressure medication a month earlier. During the period of service starting in August 2002, he was placed on two blood pressure medications, Zestril (Lisinopril) and Hydrochlorothiazide. A record of treatment from Dr. J.B., dated in March 2003, prior to separation from service, shows a diagnosis of hypertension with blood pressure recorded as 146/96. The Veteran was advised to take Norvasc. In April 2004, the Veteran's blood pressure was described as controlled with Norvasc. The Veteran claims that his hypertension was aggravated during his period of active duty starting in August 2002. During the October 2010 hearing, he testified that he was diagnosed with hypertension around 1998 or 1999 by his private physician, but that when he was activated for service, his blood pressure was normal. He added that he did not have problems with his blood pressure until he went through training as part of his deployment to Bosnia in 2002. He indicated that his blood pressure medication was changed during service, and he was put on more medication. He added that he had to have daily blood pressure checks. He also reported that he never experienced problems with leg swelling or headaches until his deployment to Bosnia. The Veteran was afforded a VA examination to evaluate his claimed hypertension in May 2008. The April 2008 examination request shows that the RO requested an opinion regarding whether it was at least as likely as not that the Veteran's hypertension was related to hypertension in service. On examination in May 2008, the Veteran reported that he was noted to have high blood pressure around 1999 in the private sector, but was advised of no treatment at the time. He added that, a few months later, he was called back to active duty, and was noted to have high blood pressure deemed sufficiently severe to require treatment. The physician added that "the rest is history as he has been treated for his high blood pressure ever since and the high blood pressure is uncomplicated to date." Blood pressure readings on examination were 159/99, 156/88, and 159/93. The diagnosis was high blood pressure, treated and uncomplicated to date. Because VA undertook to provide a VA examination to evaluate the claimed hypertension, the Board must ensure that such an examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The May 2008 VA examiner did not provide an etiological opinion regarding the Veteran's diagnosed hypertension. Therefore, in the April 2011 Board remand, it was requested that all contemporaneous records showing treatment of the Veteran for hypertension subsequent to July 2010 be added to the record. Moreover, a VA examination was to be provided to the Veteran to determine the etiology of his hypertension. The examiner was requested to provide an opinion as to whether it was at least as likely as not that the Veteran's current hypertension was incurred or aggravated as a result of active service, to include any period of ADT. In providing the opinion, the examiner was to address whether the hypertension, which preexisted the entry to active service after the first period, was aggravated beyond its natural progression. Additional VA treatment records dated through 2011 were added to the record. They show treatment for various conditions, to include hypertension. The requested examination of the Veteran's hypertension was conducted in May 2011. The VA examiner noted that he reviewed the claims file, and that the Veteran had hypertension that predated his active service after the first period. The diagnosis was hypertension under good control. The examiner opined that there was no evidence that the Veteran's hypertension was incurred or aggravated as a result of active service to include any period of active duty. For rationale, the examiner noted that in the absence of organ damage, there had been no natural progression of the hypertension. It appeared to be under good control. No diagnosis of hypertension is shown in any examination or medical report compiled in the Veteran's first period of service which ended in 1969. While elevated blood pressure readings were noted by medical personnel many years later in the late 1990s, not during active service, with prescription of medication for treatment in or around 2000, it is clear that was not during a period of active duty. Therefore, the Board finds that hypertension, first diagnosed in the late 1990s, did not manifest to a compensable degree within one year of service separation with respect to the first period of service. Therefore, the presumptive provisions for hypertension are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309 (2012). It is the Veteran's contention that his hypertension was diagnosed in the late 1990s and aggravated during his later active service. Although he denied medications on his March 2000 annual medical certificate, the evidence shows that he had been placed on medication for hypertension a month earlier. Moreover, after entry into service in 2002, he was placed on additional blood pressure medications. Based on the evidence outlined above, the Board finds clear and unmistakable evidence that hypertension preexisted his later periods of active service. A VA examiner in 2011 opined that the condition was not aggravated during service as evidenced by the fact that there was no additional organ damage due to the condition. The condition was well controlled with medication. In finding clear and unmistakable evidence of no aggravation, the Board places significant probative value on the May 2011 VA hypertension examination undertaken to specifically address the issue. The VA examiner summarized the Veteran's service medical records as to active service and ADT, reported pre and post service medical histories, and provided opinions with rationale. The May 2011 VA hypertension opinion is competent and probative medical evidence because it is factually accurate, the VA examiner was informed of the relevant evidence in this case, reviewed the claims file, relied on accurate facts, and gave a fully articulated opinion that is supported by a sound reasoning. Thus, it is clear that the presumption of soundness is rebutted as the evidence shows that hypertension both clearly and unmistakably preexisted the later periods of active service and clearly and unmistakably was not aggravated by such service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board has also considered the Veteran's lay statements regarding onset and aggravation. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He has indicated that he experienced aggravation in service. While the Board reiterates that the Veteran is competent to report symptoms as they come to him through his senses, the permanent worsening of hypertension is not the type of determination about which a lay person can provide competent evidence. Rucker v. Brown, 10 Vet. App. 67 (1997) (lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). The Veteran's hypertension is complex, as it involves disease processes of the cardiovascular system and can only by diagnosed by specialized medical testing. Because the record contains clear and unmistakable evidence showing that the hypertension was not shown during the first period of service and was not diagnosed until many years later, preexisted his later periods of active service and was not aggravated therein, the presumption of sound condition for later period of service is rebutted. Furthermore, the evidence clearly and unmistakably shows that the disability was not aggravated during either later period of active service. The only competent evidence regarding whether the disability was aggravated, the May 2011 VA opinion, found that the disability was not aggravated. There is no contrary competent evidence. Therefore, the claim must be denied. The Board finds that the preponderance of the evidence is against the claim for service connection and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ HARVEY R. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs