Citation Nr: 0810013	
Decision Date: 03/26/08    Archive Date: 04/09/08

DOCKET NO.  04-33 127	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for hypertension, including 
as secondary to service-connected porphyria or exposure to 
herbicide agents. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

Amy R. Grasman, Associate Counsel 


INTRODUCTION

The veteran served on active duty from August 1967 to May 
1972.  

This appeal comes before the Board of Veterans' Appeals 
(Board) from an April 2003 RO decision.  This case was 
remanded by the Board in February 2006 for additional 
development. 

In August 2005, the veteran testified in a Travel Board 
hearing in front of the undersigned Veterans Law Judge.  The 
transcript of the hearing is associated with the claims file 
and has been reviewed.

Additional evidence was submitted by the veteran in August 
2007, following certification of the appeal to the Board.  
The veteran did not provide a waiver of RO consideration of 
the evidence.  See 38 C.F.R. § 20.1304(c) (2007).  The 
additional evidence, which consists of a letter written by 
the veteran, medical records and internet research regarding 
porphyria, asserts contentions that were previously 
considered by the RO.  Furthermore, as the evidence does not 
provide a medical opinion relating the veteran's hypertension 
to porphyria, it does not have a bearing on the issue on 
appeal.  The Board finds that the evidence is not pertinent 
and referral to the RO for initial review is not required.  
38 C.F.R. § 20.1304(c).


FINDINGS OF FACT

1.	The veteran has been notified of the evidence necessary to 
substantiate his claim, and all relevant evidence necessary 
for an equitable disposition of this appeal has been 
obtained.

2.	The competent medical evidence does not show that 
hypertension began during active military service or within a 
year thereafter, or was caused or aggravated by a service-
connected disability.  


CONCLUSION OF LAW

Hypertension was not incurred during active military service, 
may not be presumed to have been incurred therein, and was 
not the result of a service-connected disability.  38 
U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2007); 38 
C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the 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. 2007); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative, if any, of any information, 
and any medical or lay evidence, that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  
Proper notice from VA must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
(3) that the claimant is expected to provide; and (4) must 
ask the claimant to provide any evidence in his possession 
that pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  This notice must be provided prior to an 
initial unfavorable decision on a claim by the agency of 
original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 
1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 
112 (2004).  

Here, the VCAA duty to notify was satisfied by way of a 
letter sent to the appellant in November 2002 that fully 
addressed all four notice elements and was sent prior to the 
initial AOJ decision in this matter.  Additionally, letters 
were also sent in February 2005 and June 2006.  The letters 
informed the appellant of what evidence was required to 
substantiate the claim and of the appellant's and VA's 
respective duties for obtaining evidence.  The appellant was 
also asked to submit evidence and/or information in his 
possession to the AOJ.

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
In this case, the June 2006 letter provided this notice.  Any 
error regarding this notice was harmless given that service 
connection is being denied, and hence no rating or effective 
date will be assigned with respect to this claimed condition.  

VA also has a duty to assist the veteran in the development 
of the claim.  This duty includes assisting the veteran in 
the procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained service medical 
records, DD Form 214 and private medical records.  The 
veteran was provided an opportunity to set forth his 
contentions during the hearing before the undersigned 
Veterans Law Judge.  The appellant was afforded a VA medical 
examination in July 2006.  Significantly, neither the 
appellant nor his representative has identified, and the 
record does not otherwise indicate, any additional existing 
evidence that is necessary for a fair adjudication of the 
claim that has not been obtained.  Hence, no further notice 
or assistance to the appellant is required to fulfill VA's 
duty to assist the appellant in the development of the claim.  
Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 
(Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 
(2001); see also Quartuccio v. Principi, 16 Vet. App. 183 
(2002).

Service connection may be granted for a disability resulting 
from a disease or injury incurred in or aggravated by 
service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  This may 
be shown by affirmative evidence showing inception or 
aggravation during service or through statutory presumptions.  
Id.  

To establish direct service connection for a claimed 
disorder, there must be (1) medical evidence of current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service occurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 
1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  

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.  See 38 C.F.R. § 3.303(b).  
If chronicity in service is not established, a showing of 
continuity of symptoms after discharge is required to support 
the claim. Id.  

Where a veteran served 90 days or more during a period of war 
or during peacetime service after December 31, 1946, and a 
chronic disease such as hypertension manifests to a degree of 
10 percent within one year from date of termination of such 
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.  This presumption is rebuttable 
by affirmative evidence to the contrary.  38 U.S.C.A. § 1101, 
1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309.  

Service connection may 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).

The veteran claims service connection for hypertension 
secondary to both his service-connected porphyria and to 
exposure to Agent Orange in Vietnam.  

The veteran testified that his first diagnosis of 
hypertension was January 1974.  The first evidence of a 
diagnosis of hypertension in the medical evidence of record 
is in September 1975.  The remaining private medical records 
show treatment for hypertension since September 1975.  
Therefore, the veteran has a current diagnosis of 
hypertension. 

The Board notes that there is no medical evidence depicting 
symptoms of or a diagnosis of hypertension within one year of 
separation from service.  Therefore, service connection 
cannot be presumed.  See 38 C.F.R. §§ 3.307, 3.309.  

Additionally, there is no indication in the service medical 
records of hypertension.  The August 1967 entrance 
examination and the March 1972 separation examination are 
negative for hypertension with blood pressure readings of 
136/74 and 138/74 respectively.  The veteran also reported 
that he did not have high or low blood pressure prior to 
service.  

Finally, there is no medical evidence of record relating the 
veteran's hypertension to service.  The evidence of record is 
devoid of any objective medical evidence of hypertension 
until September 1975, more than a year after service.  
Furthermore, despite several years of treatment for 
hypertension by several different physicians, no doctor has 
ever opined that his hypertension is related to service.  
Without competent medical evidence linking hypertension to 
service, service connection is not warranted.  

The veteran also claims that his hypertension is related to 
his service-connected porphyria.  Service connection may be 
established on a secondary basis for a disability that is 
proximately due to or the result of a service-connected 
disease or injury.  38 C.F.R. § 3.310(a) (2007).  
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 (a) 
caused by or (b) aggravated by a service-connected 
disability.  See 38 C.F.R. § 3.310(a); see also Allen v. 
Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo 
v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 
Vet. App. 34 (1991).

In this case, there is no evidence that hypertension is 
related to a service connected disability.  The veteran is 
service connected for varicose veins and porphyria.  There is 
no medical evidence of record showing that the veteran's 
hypertension was caused by the varicose veins.  A July 2006 
VA Compensation and Pension Examination also shows that 
hypertension was not caused by porphyria.  The VA examiner 
opined that the acute intermittent porphyria did not cause 
hypertension and medical research did not show that 
hypertension was a documented long-term sequalae of acute 
intermittent porphyria.  

The Board acknowledges a private physician's statement in 
August 2003 that an acute attack may vary in presentation, 
including hypertension.  The physician also opined that 
hypertension seemed to persist to some extent between 
attacks.  The Board finds that this opinion does not show 
that hypertension was caused by porphyria.  This opinion is 
not conclusive as to the cause of the veteran's hypertension.  
See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 
(1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) 
(medical opinions, which are speculative, general or 
inconclusive in nature, cannot support a claim).  

Finally, the veteran asserts that hypertension was caused by 
exposure to Agent Orange in Vietnam.  The personnel file 
shows that the veteran served in Vietnam from May 1969 to 
February 1970 and participated in the Tet Counter Offensive.  
He received the National Defense Service Medal, the Vietnam 
Service Medal, the Vietnam Campaign Medal and an Overseas 
Bar.  

If a veteran was exposed to an herbicide agent during active 
military service, certain diseases will be presumed to have 
been incurred in service if manifest to a compensable degree 
within specified periods, even if there is no record of such 
disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. 
§§ 3.307(a)(6), 3.309(e).  

Regardless of the veteran's exposure or presumed exposure to 
Agent Orange in service, service connection on a presumptive 
basis for exposure to herbicides in Vietnam is limited to the 
following diagnoses: non-Hodgkin's lymphoma, soft-tissue 
sarcoma, chloracne or other acneform disease consistent with 
chloracne, Hodgkin's disease, porphyria cutanea tarda, 
respiratory cancers (cancer of the lung, bronchus, larynx, or 
trachea), multiple myeloma, Type 2 diabetes, acute and 
subacute peripheral neuropathy, and prostate cancer.  See 38 
U.S.C.A. § 1116(a)(2) (West 2002); 38 C.F.R. § 3.309(e).  
Hypertension is not considered a presumptive condition under 
38 C.F.R. § 3.309(e).  Therefore, hypertension cannot be 
presumed service connected based on exposure to herbicides in 
Vietnam.  

Additionally, there was no medical evidence of record showing 
that hypertension was caused by service, including exposure 
to Agent Orange or any other herbicide agent in Vietnam.  
Without competent medical evidence relating hypertension to 
exposure to an herbicide agent, service connection is not 
warranted.  

The Board has considered the veteran's contention that a 
relationship exists between his hypertension and porphyria.  
However, as a layman, without the appropriate medical 
training and expertise, he is not competent to provide a 
probative opinion on a medical matter such as etiology.  
While a layman such as the veteran can certainly attest to 
his in-service experiences and current symptoms, he is not 
competent to provide an opinion linking that disability to 
service or to a service-connected disability.  See Bostain v. 
West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. 
Derwinski, 2 Vet. App. 492 (1992).  See also Routen v. Brown, 
10 Vet. App. 183, 186 (1997) ("a layperson is generally not 
capable of opining on matters requiring medical knowledge").  
The competent medical evidence, including the private medical 
records and the VA examination, does not support the 
veteran's assertions.  

In sum, the evidence of record does not show that 
hypertension was incurred in service, manifested within one 
year after service, caused by a service connected disability 
or caused by exposure to Agent Orange.  As the preponderance 
of the evidence is against the veteran's claim, the benefit-
of-the-doubt rule does not apply, and the veteran's claim for 
service connection for hypertension must be denied.  See 38 
U.S.C.A §5107; 38 C.F.R. § 3.102.


ORDER

Service connection for hypertension, including as secondary 
to service-connected porphyria and exposure to herbicide 
agents is denied. 



____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs