Citation Nr: 1642153 Decision Date: 11/01/16 Archive Date: 11/18/16 DOCKET NO. 09-34 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected migraine headaches or as due to exposure to tar pit toxins. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from May 1988 to May 1991, to include service in Southwest Asia. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2015. A transcript of that hearing is of record. In December 2015, the Board denied the claim, which the Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In August 2016, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Remand (JMR). The December 2015 Board decision noted that the Veteran had filed a notice of disagreement with the September 2014 rating decision which had denied the Veteran's claims for service connection for a right ankle sprain, varicose veins of the bilateral extremities, flat feet, sleep apnea and chronic fatigue syndrome as due to an undiagnosed illness; and that a statement of the case needed to be issued with regard to those issues. To date this action does not appear to have been completed. FINDING OF FACT A diagnosis of hypertension has not been shown at any time during the appeal period. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), private treatment records, and VA treatment records have all been obtained. The Veteran also had the opportunity to testify at a hearing before the Board. No VA examination was requested in relation to the issue of service connection for hypertension, and indeed after reviewing the record a second time the Board once again concludes that the duty to provide an examination or obtain a medical opinion has simply not been triggered in this case. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is admittedly a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, it is still a threshold (which, as discussed, is not met in this case). While the Veteran, by virtue of filing a claim, has suggested that his hypertension is the result of either military service or a service connected disabilities, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. That is, lay statements alone, without supporting evidence, in many cases will not to trigger the duty to provide an examination or medical opinion. To do so would effectively require an opinion be provided in every case. The Federal Circuit was very clear that this was not intended by the applicable statute. Here, as will be discussed, it is unclear whether the Veteran has actually been diagnosed with hypertension. However, even if it is accepted that he currently has hypertension, the competent evidence fails to even suggest that such a disability either began during or was otherwise caused by his military service, to include as a result of any exposures in service, or was caused or aggravated by a service connected disability. That is, the evidence of record, beyond the Veteran's statements, does not suggest that his hypertension even may be associated with the Veteran's service or with another service-connected disability. Therefore, as discussed in detail below, VA has no duty to provide a VA examination or obtain an opinion in this case. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection 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. § 1110; 38 C.F.R. § 3.303. The chronicity provisions are applicable where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases, including hypertension, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran filed a service connection claim for hypertension in December 2006, which was denied by a November 2007 rating decision. In December 2015, the Board denied the service connection claim for hypertension, which the Veteran appealed to the CAVC. In August 2016, the CAVC granted a limited JMR in which the parties agreed that the Board's statement of reasons or bases supporting the December 2015 decision were inadequate, but only to the extent that the Board had failed to adequately explain why a VA examination was not required. The JMR noted that the Veteran could be considered to be competent to report being diagnosed with hypertension and prescribed medication for it. On this point, the Board concurs with the JMR. However, of note, the JMR did not suggest that an examination was actually warranted in this case, nor did the JMR point to any evidence suggesting that the Veteran's hypertension even might be the result of either his military service or a service connected disability. Likewise, in the months since the Board decision and the JMR, neither the Veteran, nor his representative, has advanced any evidence (such as a statement from a medical professional or any type of treatise) linking hypertension to either the Veteran's military service or to a service connected disability. The Veteran believes that his hypertension was either incurred during his service in Southwest Asia due to exposure to pit burn toxins or is secondary to his service-connected migraine headaches, which were service connected by a January 2013 rating decision. For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Multiple blood pressure readings are required to confirm the diagnosis of hypertension with two or more readings on at least three different days. 38 C.F.R. § 4.104, DC 7101, Note 1. In August 2016, VA reported that the Veteran was to be considered exposed to burn pit toxins during his service in Southwest Asia. However, VA laws and regulations do not provide for presumptive service connection for hypertension based on exposure to burn pits, and the Veteran has not advanced any medical evidence or studies linking the development hypertension to environmental exposures. As such, service connection based on exposure to burn pit toxins is not warranted. The Veteran's STRs do not show a diagnosis of hypertension rendered during his service. Nor is it alleged that hypertension was diagnosed during service. The Veteran's blood pressure reading at his entrance examination was 114/74. In addition, he denied having high blood pressure. His blood pressure readings during his active service were 98/52, 122/94, 124/80, 126/76, 122/66, 144/72, 120/80, 124/78, 102/64, and 120/70. Even with the single elevated blood pressure reading of 144/72, he was not diagnosed with hypertension, and even that reading would not meet the definition of hypertension for VA purposes. At his separation examination in April 1991, the Veteran's blood pressure was 130/84 and he continued to deny having any high blood pressure. Medical records in the years following service do not show any complaints, treatment, or diagnosis of hypertension, despite the Veteran seeking medical treatment during that time. In fact, his blood pressure was 110/70 in November 1992, 130/70 in August 1993, and 120/80 in November 2003. At his Board hearing, the Veteran testified that he was diagnosed with hypertension in 2006. He also testified he was prescribed Norvasc for his hypertension. While his medical records show that he was prescribed Norvasc and Propranolol, which can be used to treat high blood pressure, his medical records show that these medications were prescribed for treatment of his migraine headaches and make no mention of any hypertension. The medical records do reflect that the Veteran has been prescribed medications that could be used to treat high blood pressure, but his medical records specifically note that these medications were prescribed for treatment of his migraine headaches; and the Veteran's medical record contains no evidence of any complaints, treatment, or diagnosis of hypertension. Likewise, his medical records do not note any prescription of medications specifically for the treatment of hypertension. Nevertheless, the Veteran is considered competent to report what a medical professional informed him, and he has reported being diagnosed with hypertension. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The JMR hung on the fact that the Veteran would be considered competent to report being diagnosed with hypertension. Indeed, the Board could undertake a credibility analysis, but such is not required to adjudicate this claim. That is, regardless of whether the Veteran currently has hypertension, such a determination is ultimately immaterial to the resolution of this claim, as the evidence of record does not currently suggest that hypertension was diagnosed within a year of service separation and there is no competent evidence that hypertension either began during or was otherwise caused by the Veteran's military service or was caused or aggravated by a service connected disability such as headaches. The JMR did not state that a VA examination was required, only that an adequate statement of reasons or bases be provided for finding why a VA examination was not required. Here, the record contains no evidence establishing that a diagnosis of hypertension occurred in service, or during an applicable presumptive period. At best, per the Veteran's own testimony, hypertension was first diagnosed in 2006, approximately 15 years after he separated from military service. Admittedly, passage of time without medical complaints about a condition is not dispositive, but it is a factor that can be considered in resolving a claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, it is particularly relevant as there is not an absence of treatment. Rather, the Veteran sought medical treatment, and had his blood pressure tested on several occasions both during service and in the years following service, but the blood pressure readings did not reach hypertensive levels as defined by VA, and there is no suggestion that hypertension was diagnosed for more than a decade following service. Because the evidence of record does not establish continuity of hypertension from service, a medical opinion is required to link the Veteran's hypertension to either service or to a service connected disability. As noted on a number of occasions, the Veteran has not advanced any competent evidence to even suggest that he might have hypertension as a result of either service or a service connected disability. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion such as diagnosing hypertension or expounding on its etiology. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, the Veteran may be on medication for hypertension, but service connection requires more than just the presence of a current disability. Rather there must be competent (meaning that the evidence is provided by someone qualified by medical training or experience to provide the opinion) evidence linking the current disability to either military service or to a service connected disability. This component of service connection is lacking in this case, and it is for that reason that the Veteran's claim is being denied. ORDER Service connection for hypertension is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs