Citation Nr: 1429477 Decision Date: 06/30/14 Archive Date: 07/03/14 DOCKET NO. 10-03 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection heart disease, to include coronary artery disease. 4. Entitlement to service connection kidney disease, to include hypertensive nephrosclerosis. 5. Entitlement to service connection for hepatitis C. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to November 1976. This appeal comes before the Department of Veterans' Affairs (VA) Board of Veterans' Appeals (Board) from a June 2008 rating decision of the VA Regional Office (RO) in Huntington, West Virginia that denied entitlement to service connection for hypertension, migraine headaches, hepatitis C, arthritis, coronary artery disease, and hypertensive nephrosclerosis. Entitlement to a nonservice-connected disability pension was administratively denied by RO letter in June 2008. The Veteran was afforded a personal hearing at the RO in July 2010 and before the undersigned Veterans Law Judge in November 2011 sitting at Huntington, West Virginia. The transcripts are of record. During the latter hearing, the appellant affirmatively withdrew the issue of entitlement to service connection for arthritis from appellate consideration. By decision in May 2012, the Board denied nonservice-connected disability pension and dismissed the claim of entitlement to service connection for arthritis. The VA paperless electronic claims record (Virtual VA/VBMS) has been reviewed in considering the appeal. FINDINGS OF FACT 1. High blood pressure was not shown in service or for many years thereafter; there is competent evidence of record that hypertension is not related to service. 2. Migraine headaches were not shown in service or for many years thereafter; there is competent evidence of record that migraine headaches are not related to service. 3. Hepatitis C was not shown in service or for many years thereafter; there is competent evidence of record that hepatitis C is not related to service. 4. Coronary artery disease was not shown in service or for many years thereafter; there is competent evidence of record that heart disease is not related to service. 5. Kidney disease was not shown in service or for many years thereafter; there is competent evidence of record that hypertensive nephrosclerosis is not related to service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 2. Migraine headaches were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 3. Hepatitis C was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 4. Coronary artery disease was not incurred in or aggravated by service nor may heart disease be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 5. Hypertensive nephrosclerosis was not incurred in or aggravated by service nor may kidney disease be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts and has presented extensive testimony to the effect that he has hypertension, migraine headaches, hepatitis C, arthritis, coronary artery disease, and hypertensive nephrosclerosis that are of service onset for which service connection should be granted. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in February 2008 and thereafter of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, to include securing VA clinical data and obtaining VA compensation examinations that are determined to be adequate for adjudication purposes. The Veteran presented testimony on two hearings during the course of the appeal. The Board finds no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claims of entitlement to service connection for hypertension, migraine headaches, hepatitis C, coronary artery disease, and hypertensive nephrosclerosis are ready to be considered on the merits. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may 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). For the 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2013). Certain chronic diseases, to include hypertension, heart disease and kidney disease, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013). Factual Background The Veteran's service treatment records reflect a blood pressure of 138/80 on service entrance examination in September 1975. Urinalysis was negative for albumin. A chest X-ray was negative. In June 1976, a neuropsychiatric consultation sheet shows that the appellant was seen for psychiatric evaluation because of an inability to cope with service life. History provided by him and considered reliable was that he had abused, sold and dealt drugs for the last seven years, had begun using intravenous (IV) heroin, cocaine and amphetamines prior to service, and had continued these habits since joining the Navy. He was determined to be physically and psychologically addicted to intravenous heroin, cocaine and amphetamines. Personnel records reflect that the Veteran had no desire to remain in service. On examination in November 1976 for discharge from active duty, a blood pressure of 130/86 was obtained. Urinalysis was negative for albumin. A chest X-ray was normal. Serology was non-reactive. The head, heart, abdomen and viscera were evaluated as normal and no defect was recorded. The Veteran was administratively separated from service under honorable conditions due to inability to adjust to military service with no desire for drug rehabilitation. A claim for service connection of the claimed disorders was received in December 2007. Subsequently received were VA outpatient records dating from May 2007 showing that the Veteran was admitted that month for elevated high blood pressure. It was noted that he had been incarcerated for the past 6 years and had only been out of jail six days. The appellant provided history that he had had high blood pressure for more than 20 years and had also had migraines for years. He underwent extensive diagnostic work-up during admission and was found to have an inferior wall ischemic area on cardiac stress testing and impaired renal function due to dehydration. On discharge, the diagnoses included renal failure and migraines. He underwent hepatitis C assessment in August 2007 and was subsequently determined to have a heavy viral load for which treatment was commenced. In October 2007, diagnoses were recorded of coronary artery disease, and chronic stage III kidney disease, primarily a manifestation of hypertensive nephrosclerosis. A November 2007 clinical entry noted a history of intravenous drug use. VA outpatient clinical records dated between 2009 and 2010 reflect that in May 2009, opioid and cocaine dependence, continuous, was diagnosed. Pursuant to Board remand, the Veteran was afforded VA examinations in June 2012. The examiner indicated that the appellant's medical records were reviewed. On cardiac examination, the Veteran stated that he was told by a doctor that he had an irregular heartbeat and that the last episode was about 10 years before. The examiner noted that no arrhythmia was recorded in the record but that a diagnosis of bradycardia was shown in 2008. A diagnosis of coronary artery disease was provided. The examiner diagnosed hypertension and indicated that there was a question of this being diagnosed around 1975. It was noted, however, that in reviewing the claims folder and medical record, blood pressure was normal in 1998 and that the first elevated reading was 172/104 in 1999. The examiner stated that the Veteran felt that he had contracted hepatitis C from immunizations he was given in service. He also related that he had shared razors in service. It was noted that he had been screened in 2008 and was found to be hepatitis C positive. Risk factors for the disease in his case were listed as intravenous drug use or intranasal cocaine and other direct percutaneous exposure to blood. The examiner reported that the Veteran volunteered that he had been an IV heroin user after military discharge. The examiner stated that review of the claims folder showed that prior to his discharge from service, there was a history of IV drug abuse over the preceding seven years. The Veteran said that he had used crack cocaine infrequently. The examiner noted that his VA record showed a positive cocaine screen on numerous occasions from 2008 to 2011. Migraine and tension headaches were diagnosed. In this regard, the appellant stated that while in service, he had a great deal of stress, was seen for right-sided headaches and was told he had migraine headaches brought on by stress that had continued after service. The examiner noted that review of the claims folder disclosed no record of headaches in the service treatment records. Chronic kidney disease was diagnosed. It was reported that nephrology consultation in October 2007 established the diagnosis of hypertensive nephrosclerosis. Following examination, the examiner stated that the Veteran did indeed have diagnoses of hypertension, migraine headache, coronary artery disease and hypertensive nephrosclerosis, but that review of the service treatment records did not reveal a history of any of those issues during active duty. The examiner stated that there were no records showing any of the claimed disorders in the several years before he presented to treatment. He related that at the time of presentation for treatment in 1989, the appellant had normal function tests and the record was negative for any abnormalities relating to the claimed conditions. The examiner reiterated that the first elevated blood pressure reading was in January 1999, the first evidence of abnormal kidney function was in May 2007 and the first sign of chest pain was in May 2007. It was determined that the claimed conditions were less likely than not incurred in or caused by service. As to the claim for hepatitis C, the examiner stated that the Veteran's claim of hepatitis C caused by immunization techniques was not substantiated in the medical literature. He related that the Veteran had a drug problem in service and also used IV heroin from after service from 1980 through the next 15 years. The examiner opined that in view of such, it was far more likely that hepatitis C was related to drug use than any in-service exposure. Legal Analysis The Board points out that there is no evidence that hypertension, coronary artery disease, and hypertensive nephrosclerosis had their onset during active service, nor was cardiovascular or kidney disease manifested to a degree of 10 percent or more within one year of discharge from active duty. As demonstrated in the record and reported by the 2012 VA examiner, hypertension was first clinically demonstrated in 1999, more than two decades after service. Heart disease and kidney disease were not diagnosed until 2007, more than three decades after discharge from military service. Therefore, service connection for hypertension, coronary artery disease, and hypertensive nephrosclerosis may not be granted either directly or presumptively to service pursuant to 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). The Veteran asserts that he first developed migraine headaches during active duty. The Board has carefully considered the appellant's lay statements, testimony and history to the effect that such symptoms are of service onset. The service treatment records are completely silent for any symptoms in this regard. Nonetheless, the appellant is competent to report that he has had migraine headaches since service. However, his report of such and continuity of symptomatology thereafter must be weighed against the clinical evidence of record that shows no findings or complaints of migraine headaches in proximity to service or for many years thereafter. Also weighing against the claim is the opinion by the VA examiner in 2012 finding that migraines are less likely than not of service onset for reasons cited above. There is no other competent opinion in the record that supports a finding that the claimed migraines are related to service. The Board thus finds that the Veteran's statements and testimony attributing migraine headaches to service are less probative and do not provide a basis to establish service connection. In view of such, the Board concludes that the weight of the evidence is against the claim of service connection for migraines. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding that the absence of treatment for the claimed disability for decades after service constituted negative evidence against the claim), and service connection for migraine must be denied. As for the claim of service connection for hepatitis C, the record reflects that this disease was not diagnosed until 2007, more than three decades after service. VA has determined that risk factors for hepatitis C include IV drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades, etc. VBA letter 211B (98-110) November 30, 1998. The record reflects that the Veteran's risk factors for hepatitis C includes at three of those listed above. The evidence fails to demonstrate a competent nexus between current hepatitis C and service. Although the Veteran indicates he was exposed to the virus as the result of shared immunization needles or shared razors during service, there is no evidence in the claims folder to substantiate these contentions except for his own statements and testimony to this effect. Notably, the clinical record reflects that prior to, during and after service, he admitted to long-term intravenous heroin and cocaine abuse, a primary mode for the transmission of hepatitis C. In 2012, the VA examiner found that immunization technique as a cause of hepatitis C was not substantiated in the medical literature. The examiner opined that it was far more likely that hepatitis C was transmitted through drug use than through any in-service exposure. The Veteran's has presented no competent evidence linking hepatitis C to active duty, nor has he identified any competent source for an opinion linking the disease to service or any incident thereof. In this instance, the Board attaches greater probative weight to the finding of the skilled VA clinical professional and less to the Veteran. See Cartright v. Derwinski, 2 Vet. App. 24, 25. As such, the Veteran's opinion concerning the etiology of hepatitis C has less probative evidentiary value and service connection for such is not warranted. In summary, the Board concludes that there is no reliable and/or probative evidence demonstrating that the Veteran has hypertension, migraine headaches, hepatitis C, coronary artery disease, and hypertensive nephrosclerosis related to service or to any incident therein. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claims and service connection is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for hypertension is denied. Service connection for migraine headaches is denied. Service connection for hepatitis C is denied. Service connection for heart problems, claimed as coronary artery disease, is denied. Service connection for kidney disease, claimed as hypertensive nephrosclerosis, is denied. ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs