Citation Nr: 0810222 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 03-00 297A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to the service-connected bilateral residuals of frostbite of the lower extremities, bilateral peripheral neuropathy of the lower extremities, and/or post- traumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral arthritis of the knees, to include as secondary to the service- connected bilateral residuals of frostbite of the lower extremities and/or bilateral peripheral neuropathy of the lower extremities. 3. Entitlement to service connection for bilateral arthritis of the metacarpophalangeal and interphalangeal joints, to include as secondary to the service-connected bilateral residuals of frostbite of the lower extremities and/or bilateral peripheral neuropathy of the lower extremities. 4. Entitlement to service connection for bilateral arthritis of the shoulders, to include as secondary to the service- connected bilateral residuals of frostbite of the lower extremities and/or bilateral peripheral neuropathy of the lower extremities. 5. Entitlement to an initial rating in excess of 10 percent for PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from November 1941 to August 1945. These matters came before the Board of Veterans' Appeals (Board) initially on appeal from a December 2001 rating decision, which granted service connection for PTSD and assigned an initial 10 percent rating, effective July 2, 2001, and denied the veteran's claims for a total disability rating based on individual unemployability due to service- connected disability (TDIU) and for service-connection for the above listed disabilities. In June 2004, the Board granted the veteran's motion to advance the appeal on the Board's docket because of his age. In a July 2004 decision, the Board granted the veteran's TDIU claim and remanded the remaining claims on appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional notice and development. In that decision, the Board also noted that the veteran or his representative had raised issues of entitlement to service connection for depression, dementia, Alzheimer's disease, tinea pedis and bilateral impingement syndrome and to an effective date prior to July 2, 2001 for the grant of service connection for PTSD. It does not appear that any action has been taken by the RO on these issues; therefore, they are referred to the RO for appropriate action. FINDINGS OF FACT 1. In November 2004, prior to the promulgation of a decision in the appeal, the veteran stated that he was pursuing one issue only, service connection for hypertension, and that he wished to withdraw all of the other issues on appeal. 2. Service connection is in effect for bilateral residuals of frostbite of the lower extremities, for bilateral peripheral neuropathy of the lower extremities, and for PTSD. 3. Hypertension was initially manifested more than 16 years following the veteran's discharge from service, and there is no persuasive medical evidence linking it to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal pertaining to entitlement to service connection for bilateral arthritis of the knees, for bilateral arthritis of the metacarpophalangeal and interphalangeal joints, and for bilateral arthritis of the shoulders, to include on a secondary basis, and an initial rating in excess of 10 percent for PTSD have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2004). 2. Hypertension was not incurred in or aggravated by active service; may not be presumed to have been so incurred or aggravated; and is not proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issues Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2004). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2004). Here, the veteran, in a November 2004 statement, withdrew his appeal as to entitlement to service connection for bilateral arthritis of the knees, for bilateral arthritis of the metacarpophalangeal and interphalangeal joints, and for bilateral arthritis of the shoulders, to include on a secondary basis, and for an initial rating in excess of 10 percent for PTSD. Accordingly, the Board does not have jurisdiction to review this appeal and these claims are dismissed. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) redefined VA's duty to notify and assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. Collectively, in pre-rating and post-rating letters dated in October 2001, September 2005, and July 2007, the RO (to include the AMC) provided the veteran with the notice required under the VCAA and the implementing regulations, to include notice that he should submit any pertinent evidence in his possession and with respect to the assignment of disability ratings and effective dates, should service connection be granted on appeal. The veteran's claim was last readjudicated in a December 2007 supplemental statement of the case. Consequently, the Board finds that the veteran has not been prejudiced by deficiencies in either the notice or timing of such notice. See Bernard v. Brown, 4 Vet. App. 384 (1993). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the service treatment records and VA medical records, as well as reports of VA examination and copies of the veteran's statements and those of his representative. The Board notes that VA has attempted to obtain treatment records from private healthcare providers identified by the veteran; however, these requests were either never responded to or returned for insufficient address. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate the claim remaining on appeal, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Sanders, supra; Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war, and hypertension becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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; 38 C.F.R. §§ 3.307, 3.309. Additionally, under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2007). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The veteran has been service connected for bilateral residuals of frostbite of the lower extremities and for bilateral peripheral neuropathy of the lower extremities since October 1998, and for PTSD since July 2001. While the veteran has specifically asserted his entitlement to secondary service connection, to give the veteran every consideration in connection with the claim, the Board will, as the RO has done, consider the claim in light of the legal authority governing direct, presumptive and secondary service connection. Considering the claim for service connection for hypertension, to include as secondary to the veteran's service-connected disabilities of the lower extremities and/or PTSD, in light of the record and the governing legal authority, the Board finds that the claim must be denied. Initially, the Board notes that there are no clinical findings or diagnoses of hypertension during service or for many years thereafter. At a September 2001 VA examination, the veteran had blood pressure readings of 160/74 and 151/61. This VA examiner diagnosed the veteran with arterial hypertension. But because the veteran's memory was so poor, although it is known that PTSD could aggravate hypertension, in this case, the examiner was not quite so sure, so she could not give an opinion. An August 2007 VA examiner noted that the first diagnosis of hypertension was in 1962 and the veteran has been on antihypertensive medications ever since. After reviewing the veteran's claims file, service treatment records, and VA treatment records, the August 2007 VA examiner opined that the veteran's hypertension is not caused by and is not aggravated by his bilateral residuals of frostbite or bilateral peripheral neuropathy in the lower extremities nor by his PTSD. In support of this opinion, the examiner stated that, although mental disease and stress can temporarily elevate blood pressure during an acute phase of the disease, she was not aware of any medical literature that substantiates a claim that PTSD permanently elevates blood pressure. Also, she noted that the veteran currently denied any significant symptoms of PTSD that could be affecting his hypertension. The examiner added that the same thing applies to bilateral frostbite residuals and peripheral neuropathy of the lower extremities; any pain syndrome or other symptoms related to these conditions are not the cause and do not permanently aggravate blood pressure. None of the veteran's post-service VA treatment records contain a medical opinion linking hypertension to the veteran's service or to any of his service-connected disabilities, or show that hypertension was manifested to a compensable degree within one year of service discharge. The Board finds probative the opinion of the August 2007 VA examiner-the only medical opinion to address the question of a secondary relationship. The examiner indicated that she had reviewed the veteran's claims file and interviewed the veteran about his medical history. The examiner noted that the veteran reported that he was diagnosed with hypertension in 1962. The examiner further concluded that the veteran's hypertension was not secondary to either the veteran's PTSD or his service-connected disabilities of the lower extremities. The Board accords great probative value to the VA examiner's comments and opinion, based as they were on a review of the veteran's claims file, a detailed review of pertinent aspects of his documented medical history, and a current examination, and considers them to be of primary importance in the disposition of this appeal. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Significantly, neither the veteran nor his representative has presented, identified, or even alluded to the existence of any medical evidence or opinion that supports a finding of service connection for hypertension on any basis. In addition to the medical evidence, the Board has considered the veteran's and his representative's written assertions; however, none of this evidence provides a basis for allowance of the claim. Matters of diagnosis and etiology are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on a medical matter. See, e.g., 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"). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the Board finds that the claim for service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The appeal for entitlement to service connection for bilateral arthritis of the knees, for bilateral arthritis of the metacarpophalangeal and interphalangeal joints, and for bilateral arthritis of the shoulders, to include on a secondary basis, is dismissed. The appeal for entitlement to an initial rating in excess of 10 percent for PTSD is dismissed. Service connection for hypertension, to include on a secondary basis, is denied ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs