Citation Nr: 0811504 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-05 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial compensable disability rating for service-connected hemorrhoids. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. B. Mays, Associate Counsel INTRODUCTION The veteran served on active duty from August 1967 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied service connection for hypertension, granted service connection for hemorrhoids, and assigned a noncompensable rating to this disability. In October 2007, the veteran testified before the Acting Veterans Law Judge sitting at the RO. A copy of the hearing transcript is of record and has been reviewed. The veteran's compensable rating claim is addressed in the REMAND portion of the decision below and is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran did not exhibit hypertension in service or within the first post-service year, and hypertension is not otherwise associated with his active duty. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 or her 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 her or 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). The VCAA duty to notify was satisfied prior to the initial AOJ decision by way of a pre-adjudication April 2004 letter that fully addressed all four notice elements. That letter informed the veteran of what evidence was required to substantiate his service connection claim, and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. The AOJ provided the veteran with an additional VCAA letter in February 2007. 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 claims folder contains the veteran's service medical records, VA and private medical evidence, the veteran's contentions, and other lay statements. The veteran was provided an opportunity to set forth his contentions during a personal hearing before the undersigned Acting Veterans Law Judge in October 2007. The veteran identified pertinent 1972 treatment in conjunction with an examination for life insurance with New York Life Insurance Company. However, he testified that the records of that examination have since been destroyed. The veteran also indicated that he tried to obtain private records showing 1980 treatment for hypertension from Dr. Muchmore. According to a June 2004 letter, Dr. Muchmore stated that the veteran was seen in his office prior to 1992, but noted that the veteran's treatment records had been destroyed. In light of the above, the Board finds that attempts to secure evidence from New York Life Insurance Company and/or treatment records from Dr. Muchmore would be futile. The Board acknowledges that the veteran has not been afforded a VA examination in conjunction with his service connection claim for hypertension. However, as discussed below, service medical records are negative for complaints of, treatment for, or findings of hypertension. The first contemporaneously recorded documentation of hypertension is dated approximately one decade after the veteran's separation from active military duty, and as will be discussed, the claims folder contains no competent evidence that the veteran's current hypertension is associated with his active military duty. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See Charles v. Principi, 16 Vet. App. 370 (2002) & 38 USCA 5103A(a)(2). Consequently, the Board concludes that a remand to accord the veteran a relevant VA examination is not necessary. Significantly, neither the veteran 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. The Board notes that in response to a supplemental statement of the case issued in May 2007, the veteran indicated that he had no other information or evidence to give VA to substantiate his claim and requested that the claim be decided as soon as possible. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the veteran 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). 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). Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also 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). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Where the veteran served continuously for ninety (90) or more days during a period of war, and if hypertension became manifest to a degree of 10 percent or more within one year from the date of the veteran's 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. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The veteran is seeking service connection for hypertension. Medical evidence of record confirms a current diagnosis of hypertension. The veteran's service medical records, to include a June 1971 separation examination report, are negative for complaints of, treatment for, or findings of hypertension. The veteran primary contention is that he was first diagnosed with hypertension in 1972 when he was examined for life insurance eligibility. However, as noted, the records from that examination have reportedly been destroyed. In support of his claim that he developed hypertension within the first post-service year, the veteran submitted June 2004 and May 2005 statements provided by J.D. Burger, a private registered nurse, and Director of Health Services at Rose State College in the 1970's. Specifically, according to these statements, J.D. Burger stated that between 1972 and 1979, she monitored the veteran's blood pressure. She indicated that, although the veteran's records are no longer available, she remembers that his systolic blood pressure readings ranged from 145 to 170, and his diastolic readings ranged from 90 to 100. In further support of his claim, the veteran also submitted a June 2005 statement provided by M. C. Crespo, D.O. This private doctor noted that he had reviewed the veteran's "medical records dating back to 1974" and that that information revealed that the veteran had hypertension at that time. The doctor concluded that given the record reviewed, and all factors considered, it appeared to him that the veteran' hypertension began as a result of his military service and/or manifested within one year of discharge therefrom. On review, the Board finds the June 2005 statement provided by Dr. Crespo, as well as the above-described statements provided by J.D. Burger, the registered nurse, to be of little probative value. The Board notes that their statements were provided more than three decades following the veteran's discharge from service, and are not supported by contemporaneous treatment records. Additionally, while a history of hypertension was noted in a 1974 treatment record from the Bone and Joint Hospital, such history is also not substantiated by the medical evidence of record. As noted, the service medical records are negative for a diagnosis of hypertension. In fact, there is not even evidence of elevated blood pressure readings during service. Further, medical records from the veteran's subsequent reserve service indicate that, on several occasions between 1975 and 1976, the veteran specifically denied ever having experienced elevated blood pressure readings. The Board emphasizes that the first competent evidence of record showing a diagnosis of hypertension is a January 1982 private medical record that specifically states that the veteran's hypertension was initially diagnosed in June 1981 (approximately one decade after separation from service). Thus, hypertension may not be presumed to have been incurred in service. 38 C.F.R. §§3.307, 3.309 (2007). There is also no competent evidence of a nexus between the veteran's current hypertension and his period of active service. The Board has also considered the August 2004 statement provided by R.C.H, a registered nurse as well as the Evening Assistant Director of Health Services at Rose State College. R.C.H. stated that from 1976 to 1983, she routinely checked the veteran's blood pressure and that the checks consistently revealed readings indicating that the veteran suffered from hypertension. However, that statement does not suggest that the veteran's hypertension had its onset during service or within the first post-service year, and therefore is not probative to the issue at hand. The record also contains an August 2004 statement from the veteran's former colleague to the effect that the veteran struggled with hypertension from 1972 and 1979. Although the veteran and his former colleague believe that the veteran's hypertension is related to his period of active service, their opinions as to medical matters are without probative value because they, as laypersons, are not competent to establish a medical diagnosis or draw medical conclusions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In sum, as medical evidence of record indicates that the veteran's hypertension was not exhibited during active duty, or within one year of separation from such service, and that hypertension has not been found to be otherwise related to his active military duty, the Board must conclude that preponderance of the evidence is against the veteran's claim for service connection for hypertension. The doctrine of reasonable doubt is not, therefore, for application. See 38 U.S.C.A. §5107(b) (West 2002 & Supp. 2007). ORDER Entitlement to service connection for hypertension is denied. REMAND The veteran is also seeking an initial compensable rating for his service-connected hemorrhoids. On review, the Board finds that further development is necessary prior to analyzing the claim of the merits. The veteran last underwent a VA examination in June 2004, at which time he was diagnosed with external hemorrhoids. He has since reported increasing symptomatology. Specifically, during his October 2007 hearing, he testified that he experiences stool leakage, rectal pain, and rectal bleeding. Given that the veteran reports increased symptomatology since his last VA examination, the Board finds that an additional examination is necessary to determine the current nature and severity of his service-connected hemorrhoids. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded a VA examination in order to determine the current severity of his service-connected hemorrhoids. Prior to the examination, the examiner is requested to review the claims folder. All findings, and the reasons and bases therefore, should be set forth in detail. The examiner is specifically requested to note whether the veteran has any large, thrombotic, or irreducible (external or internal) hemorrhoids with excessive redundant tissue, evidencing frequent recurrences, and whether his hemorrhoids cause persistent bleeding and with secondary anemia, or with fissures. 2. Following the above, the AOJ should re-adjudicate the issue of entitlement to an initial compensable rating for service-connected hemorrhoids. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. An appropriate period of time should be allowed for a response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs