Citation Nr: 0811008 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-34 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The veteran had active military service from June 1972 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied claims for service connection for hypertension and internal bleeding. The veteran did not perfect an appeal of the denial of service connection for internal bleeding, and that matter is thus not before the Board. FINDINGS OF FACT 1. The veteran is currently diagnosed with hypertension. 2. The veteran's hypertension first manifested many years after his separation from service and is unrelated to his period of service or to any aspect thereof. CONCLUSION OF LAW The veteran does not have hypertension that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to render a decision on the claim on appeal has been accomplished. In this respect, through January 2005 and March 2007 notice letters, the veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the veteran was afforded the opportunity to respond. Hence, the Board finds that the veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the January 2005 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO also notified the veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It requested that the veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. The RO also requested that the veteran submit evidence in his possession in support of his claim. Also regarding VA's notice requirements, the Board notes that, in the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim, (2) the evidence, if any, to be obtained by VA, and (3) the evidence, if any, to be provided by the claimant; and (4) VA must make a request that the claimant provide any evidence in the claimant's possession that pertains to the claim. As indicated above, the four content-of-notice requirements have been met in this case. The Board notes that although notice regarding an award of an effective date or rating criteria was not provided until after the initial adjudication of the veteran's claim, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the veteran was supplied with notice pursuant to Dingess/Hartman via the March 2007 notice letter. The Board thus does not now have such issues before it. Consequently, a remand for additional notification on these questions is not necessary. The Board also notes that while the complete notice required by the VCAA was not necessarily timely provided to the veteran, "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Nothing about the evidence or any response to the RO's notification suggests that the case must be re- adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. Here, the veteran's service medical records are associated with the claims file, as are records of private medical care the veteran has received since his separation from service. Otherwise, neither the veteran nor his representative has alleged that there are any outstanding medical records probative of his claims that need to be obtained; indeed, the veteran stated in his October 2005 VA Form 9 (Appeal to Board of Veterans' Appeals) that all pertinent records were in VA's possession. The Board is aware that no VA examination was provided to the veteran in conjunction with his claim but notes that the evidence of record does not call for one. See 38 C.F.R. § 3.159(c)(4) (2007). VA has a duty to provide an examination when the record lacks evidence to decide the veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id. Here, as stated in more detail in the analysis section below, the evidence shows that the veteran currently suffers from hypertension. The information and evidence of record, however, does not establish that a related event, injury, or disease occurred in service. Additionally, the evidence does not sufficiently establish that the veteran had hypertension or related symptomatology during the applicable presumptive period. A medical examination would not likely aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease. Duenas v. Principi, 18 Vet. App. 512, 517 (2004). See also McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006) (with no indication that a disability or persistent or recurrent symptoms of a disability may be associated with the service or another service-connected disability, claim may be denied where claimant's submissions are insufficient to grant benefits or trigger duty to assist). In the present case, there is nothing in the record, other than the veteran's claim for benefits, to indicate that his hypertension developed during service or during the applicable presumptive period. As the veteran is not competent to diagnose or provide medical nexus evidence, see Espiritu v. Derwinski, 2 Vet. App. 492 (1992), the veteran has not satisfied all the elements of McLendon. Therefore, VA is not required to provide him with an examination in conjunction with his claim. Consequently, a VA medical examination is not necessary to decide the claim. The Board thus concludes that VA has no duty to assist that was unmet. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases, including hypertension, may be presumptively service-connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2007). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). A review of the relevant evidence reflects that there is medical evidence of a current diagnosis of hypertension. There is no showing, however, of a relationship to the veteran's period of military service. The service medical records are negative for a diagnosis of hypertension; nor do they contain any complaints of or treatment for the condition. Particularly, the Board notes that the veteran's separation examination dated in January 1975 documents a normal blood pressure reading of 138/80. The veteran's heart was found to be normal, and the veteran stated that he was in fair health. At the time of the veteran's separation from service in June 1975, the veteran stated that there had been no change in his medical condition since the examination. Post-service medical evidence reflects that the veteran carried a diagnosis of hypertension as of October 1997 and has been treated for the condition with medication by private and VA physicians. An earlier treatment note from a July 1997 visit to the Jack C. Montgomery VA Medical Center (VAMC) in Muskogee, Oklahoma, reflects a plan to provide the veteran with "teaching" on blood pressure but does not document a diagnosis of hypertension. Notes from an October 1997 visit to the Muskogee VAMC reflect that the veteran's hypertension was "well controlled." Further, private medical records reflect an August 2001 visit at which the treating physician documented the veteran's history of abdominal pain but noted that the veteran "had been in otherwise good past health until recent years." There are not, however, statements in the post-service medical records indicating that the veteran's hypertension was diagnosed or treated earlier than October 1997 or that it relates in any way to the veteran's time in service. Private medical records from December 1984 through January 1990 reflect neither diagnosis nor treatment for hypertension. Neither the veteran's private physicians nor his treating VA practitioners have opined that the veteran's hypertension was related to military service. Further, none of the evidence of record provides a basis for the conclusion that the veteran's current hypertension is related to his period of service or manifested within one year of the veteran's separation from service. As noted above, the earliest suggestion of his having been diagnosed with hypertension is 1997, more than 30 years after his separation from service. The Board observes that, when he made a claim of service connection, the veteran merely submitted a release authorization form with the notation that the requested records were for "Internal Bleeding, and High-blood pressure" and made no clear statement that his hypertension was etiologically related to active service. However, the Board has accepted this statement as a valid claim for service connection, just as the RO apparently did, and thus acknowledges the veteran's contention that his currently diagnosed hypertension is etiologically related to active service. Although the veteran is competent as a layman to describe any symptoms he experiences, there is no evidence of record showing that he has the specialized medical education, training, and experience necessary to render competent medical opinion as to the etiology of his disabilities. See Espiritu, supra; 38 C.F.R. § 3.159(a)(1) (2007). Consequently, the veteran's own assertions as to the etiology of his hypertension have no probative value. Here, there is medical evidence that the veteran currently has hypertension. There is no evidence, however, of any in- service incurrence or aggravation of hypertension, and there is no medical evidence of a nexus between military service and the veteran's current hypertension. Additionally, there is no showing of hypertension within a year of the veteran's separation from service. The Board notes that the veteran was not afforded a VA examination for the purpose of determining whether there is medical evidence of a nexus between the veteran's service and his currently diagnosed hypertension. As discussed above, the Board finds that an examination is not required under these circumstances. See Duenas v. Principi, 18 Vet. App. 512, 517 (2004) (because a post-service medical examination could not provide evidence of an in-service event, a medical examination could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). In the present case, there is nothing in the record, other than the veteran's own lay statements that his currently diagnosed hypertension is related to his active service. In short, there is no competent evidence of hypertension during service or within a year of the veteran's separation from service, and no competent evidence linking the current hypertension to service. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this service connection claim. ORDER Entitlement to service connection for hypertension is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs