Citation Nr: 0812813 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 04-24 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for residuals of compound fracture of the right leg. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran served on active duty from November 28, 1966 to February 3, 1967. This matter is before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). A February 2007 Board decision denied service connection for residuals of pulled muscle of the left thigh. That decision granted an application to reopen the claim for service connection for residuals of compound fracture of the right leg and that issue and a claim for service connection for hypertension were remanded for further development. The case has now been returned for appellate consideration. It appears that the veteran is claiming entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. This matter is referred to the RO for initial consideration. FINDINGS OF FACT 1. Hypertension is not clinically shown until after active service. 2. The service entrance examination revealed residual scarring from a preservice right femoral fracture. 3. During service the veteran was treated for acute right lower extremity symptoms. 4. Examination at service discharge revealed no increase in service of any right lower extremity disability. 5. The pre-existing residuals of a right femoral fracture did not undergo a permanent increase in severity during active service. CONCLUSIONS OF LAW 1. Hypertension was not incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). 2. Pre-existing residuals of a right femoral fracture were not aggravated during active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and to assist claimants in substantiating VA claims. See 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R § 3.159. This notice is only required to be given in sufficient time to enable a claimant to submit relevant evidence. The notice may be generic without identifying evidence specific to the individual claim, although it must be tailored to the nature of the claim. It does not extend throughout the claim process. Wilson v. Mansifeld, 506 F.3d 1055, 1059-60 (Fed. Cir. 2007). Duty to Notify Under 38 U.S.C.A. § 5103(a) VA must notify a claimant of the information and evidence needed to substantiate a claim, which information and evidence VA will obtain, and which the claimant must provide. VA must request any evidence in a claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159. But, VA is not required to provide a predecisional adjudication of what evidence is needed to grant a claim because "the duty to notify deals with evidence gathering, not analysis of already gathered evidence" nor is VA required to provide notice "upon receipt of every piece of evidence or information." Locklear v. Nicholson, 20 Vet. App. 410, 415 (2006). In service connection claims, the notice must also state what is needed to substantiate all five elements of a service connection claim, which are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A review of the record shows the veteran was provided with pre-adjudication VCAA notice by letters, dated in January 2003, August 2004, December 2004, and May 2005. The veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of an injury, disease, or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event causing an injury or disease during service. The veteran was also notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtaining private medical records on his behalf. By RO letters of March 2006 and September 2006 the veteran was informed of the laws and regulations governing the degree of disability and the effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). To the extent that the degree of disability assignable and the effective- date provision was provided after the initial adjudication, the timing defect was cured without prejudice to the veteran because he had a meaningful opportunity to participate effectively in the processing of the claims as he had the opportunity to submit additional argument and evidence and the claims were readjudicated after the content-complying VCAA notice. As the timing error did not affect the essential fairness of the adjudication of the claims, the presumption of prejudicial error as to the timing error in the VCAA notice is rebutted. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Moreover, if a service connection claim is denied, the rating and effective date matters are moot but if granted this matter would be initially addressed by the RO. The same is true with respect to the assignment of any disability rating following a grant of service connection. Also, after VCAA notice is given as to an original service connection claim, further VCAA notice of "downstream" issues, e.g., an initial rating or effective date, is not required. See VAOPGCPREC 8-2003 (Dec. 22, 2003). So, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As for content of the VCAA notice, the documents substantially comply with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the five elements of a service connection claim), aff'd Hartman v. Nicholson, --- F.3d ----, 2007 WL 1016989 (C.A. Fed. 2007). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claims. The veteran and his spouse testified at hearings. A personal hearing was conducted at the RO in November 2004 and they testified at a videoconference before the BVA in October 2006. The RO has obtained the veteran's service medical records and VA treatment records. The veteran has submitted private medical treatment records. He has stated that private clinical records of treatment in his early postservice years are unavailable. He has not identified any additionally available evidence for consideration in his appeal. More recently, the veteran has questioned whether records of his claim for Social Security Administration benefits are on file. In fact, these are on file, having been mailed by the Social Security Administration to VA in January 2006. VA conducted the necessary medical inquiry in an effort to substantiate the claims for service connection. As there is no indication that the veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Principles of Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Showing a chronic disease in service requires sufficient (1) combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time. If not established, a showing of continuity of symptoms after service discharge is required. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Certain conditions, such as hypertension and arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service for those veterans that served 90 days or more of during a period of war or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection requires that there be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). 38 U.S.C.A. §§ 1111, 1137 and 38 C.F.R. § 3.304(b) provide that a veteran is presumed to be in sound condition at service entrance except for defects found on the service entrance examination or where clear and unmistakable evidence demonstrates that disease or injury existed before service entrance and was not aggravated during service. Wagner v Principi, 370 F3d. 1089, 1096 (Fed. Cir. 2004). When a preexisting condition is noted at service entrance, the presumption of soundness is not applicable and the claim is not for direct service incurrence, but for service-connected aggravation. Wagner, Id. at 1096. Even in a claim for service connection based on aggravation of a preexisting disability, all three elements for service connection must be shown. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Maxson v. West, 12 Vet. App. 453, 460 (1999) (noting that presumption of aggravation "applies only to Caluza element 2" (incurrence or aggravation during service)), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Miller v. West, 11 Vet. App. 345, 348 (1998) (reversing Board finding that presumption of soundness had been rebutted and remanding to determine whether the veteran currently had the same condition that led to service discharge). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The Federal Circuit, in Wagner, also noted that "[o]n the other hand, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under [38 U.S.C.A.] section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417." The Board must weigh the evidence of record and assess its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999). If the preponderance of the evidence is against the claim, it is denied but if the preponderance of the evidence supports of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2007). Hypertension Service medical records include an October 1966 pre-induction medical examination report documents "sitting" blood pressure reading of 128/76. The January 1967 separation medical examination report documents "sitting" blood pressure reading of 124/92. In October 2006, the veteran testified that, during his hospitalization in service (at Fort Jackson), a nurse told him he had "essential hypertension" and he was given a single dose of hypertension medication. Also, blood pressure readings taken at a private medical facility (the records from which are not available), around six months after discharge from active duty, reportedly were deemed indicative of "essential hypertension." On VA examination in 1969 the veteran's blood pressure was 110/70. Private clinical records show that in December 2002 the veteran was taking medication to control his blood pressure. VA outpatient treatment records show that in 2003 the veteran was prescribed medication for hypertension. In July 2003, Dr. Gray, a private physician (who the veteran reported had treated him since 1990) said that at induction the veteran was noted to have had normal blood pressure but at service discharge his blood pressure was elevated. He had been seen for treatment of his blood pressure since the initial diagnosis. It was clear that his high blood pressure began during his military career, and this was well documented in his service records. VA outpatient treatment records show that in April 2005 the veteran had possibly had a "small CVA." On VA examination in October 2007 it was noted that there was no clinical records confirming the veteran's history of having been treated for hypertension about six months after service discharge. The veteran's wife testified that he had been on blood pressure medication since she had known him, since about 1982, but medical records from Dr. Gray's office were only billing statements and did not list blood pressure readings or list medications. He had an elevated blood pressure reading of 159/92 in 1997, which was a hypertensive reading but there was nothing before that other than the veteran's testimony. He had had a cerebrovascular accident in 2005. It was concluded that the time of onset of the veteran's hypertension was uncertain based on the available data. Analysis Initially, the Board notes that the veteran had active service for substantially less than 90 days. So, the presumption provisions of service connection for certain chronic disabilities, such as hypertension, that manifest to a compensable degree within one year after active service are not applicable in this case. The only competent medical opinions addressing the onset of the veteran's hypertension are the statements of Dr. Gray and the VA medical opinion obtained in October 2007. It is not error for the Board to favor the opinion of one competent medical expert over that of another if there are adequate reasons and bases. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, or based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Dr. Gray stated that it was clear that the veteran's hypertension began during active service. However, this is contradicted by the VA opinion in October 2007. The service medical records reflect only one elevated diastolic blood pressure reading during active service. However, Note 1 to 38 C.F.R. § 4.104, Diagnostic Code 7101 states that: Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, 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. Although Dr. Gray stated that the veteran had been treated for hypertension since the initial diagnosis, Dr. Gray did not state when the initial diagnosis was made. To the extent that the two statements by Dr. Gray are linked, i.e., that the veteran was treated for hypertension since the initial diagnosis and it was clear that it began during active service, it appears that this is predicated upon the veteran's history of having been allegedly treated for hypertension within about six months after service. As to this, the Board acknowledges the veteran's statements that medical records shortly after service which would confirm treatment for hypertension are no longer available. On the other hand, the veteran was treated many times after service and on a number of those occasions extensive personal medical histories were recorded. Yet, no such medical history related any past diagnosis or treatment for hypertension. In other words, the opinion of Dr. Gray is apparently predicated upon a medical history related by the veteran which is not only not corroborated by contemporaneous clinical records, but also not corroborated by medical histories records for a time extending many years after active service and when it would be expected that a relevant history of hypertension, which could have an impact on treatment for almost any disability after service, was not recorded. In fact, no history of the veteran's having had hypertension is reported until after it was first treated in 2002. The Board finds that the VA opinion in 2007 that it would be purely speculative to date the onset of hypertension to any time prior to the evidence establishing the veteran's treatment for that disorder, which in this case is in 2002, has greater probative value than the opinion Dr. Gray. In this regard, the VA opinion was based on a review of all medical records associated with the veteran's claims file, a fact not reflected in Dr. Gray's opinion. As such the Board finds that the weight of the medical evidence is against the veteran's claim. Accordingly, service connection for hypertension is not warranted. Right Leg Fracture Residuals An October 1966 pre-induction examination found that the veteran had large, well-healed scars of the anterior aspect of the right thigh and the posterior aspect of the right calf from an auto accident in 1955 without deformity or limitation of motion. There was also good strength but the right calf was smaller than the left calf. In an adjunct medical history questionnaire it was reported that he had had a compound fracture of the right thigh which was now asymptomatic and without deformity. The veteran was seen in December 1966 at a Fort Jackson medical facility for a complaint of "twisted" and "painful" left thigh muscles and pubic area. He also claimed to have pain in his right thigh, as well as cramps and numbness. He had a history of a right femoral fracture when he was 10 years old. A December 1966 right femoral X-ray revealed a bony exostosis along the superior portion of the right femur, probably in the site of the prior fracture, with some overgrowth of the healing. There was also a small amount of periosteal reaction, noted laterally or in the mid-shaft. The site of the fracture was apparently at the superior portion of the tibia which was not entirely included in the X-ray. The findings of some periosteal reaction, 9 years after the original trauma, was unusual, and perhaps a repeated examination including the superior portion of the femur and hip, along with further examination of the mid-shaft were indicated. However, it does not appear that further X-rays were taken. In January 1967 it was noted that the veteran had been placed in a hospital for an upper respiratory infection. He also had pain and cramping in his right lower extremity. A January 1967 hospital report reflects that over the years the veteran had done reasonable well with respect to his preservice compound right femoral fracture, except for episodes of pain in the area of the right thigh. Since he had been in the Army, the pain and discomfort in the right lower extremity had become greater. He reported that his right leg was weaker than the left leg. On physical examination flexion and internal as well as external rotation of the right hip were accompanied by pain. There was extensive scar formation over the anteromedial aspect of the right thigh, involving also the popliteal fossa. His course during hospitalization was that he received no treatment and his condition remained the same. He was not considered physically qualified for enlistment into service because of extensive, deep, adherent scars of the right thigh. He was fit for retention but elected separation and was presented to a Medical Board. The discharge diagnoses, as also reflected on the Report of Medical Board Proceedings, were extensive cicatrix of the anteromedial aspect of the right thigh and popliteal fossa, resulting from compound right femoral fracture at age 10; and restriction of range of motion of the right hip from old compound right femoral fracture and cicatrix formation. The Report of Medical Board Proceedings also reflects, in a brief summary, that the veteran had right thigh scars and limitation of motion of the right hip from an auto accident at age 10, and that he was to be separated from service for a condition existing prior to service. On VA examination in 1969 X-rays revealed a bony protuberance at the site of an old completely united fracture of the proximal portion of the right femoral shaft with slight residual bowing of the femoral shaft at the fracture site but no other bone or joint abnormality. Post-service private clinical records show that in September 1994 the veteran strained his right thigh. Since his childhood femoral fracture he had had only some mild intermittent symptoms involving his right thigh. X-rays revealed a prominent spur at the anterolateral aspect of the mid-femoral shaft which was apparently related to the prior childhood injury and was not an acute finding. The femur was well-aligned overall without particular deformity. The impression was that it was likely that the spur on the femoral shaft might be contributing to some aggravation of his overlying soft tissue injury. In September 1995 he complained of problems with his left knee and right thigh. He had had several recent minor injuries which seemed to exacerbate his problems. Private clinical records show that August 2002 the veteran had a visual defect of the anterior right thigh form a childhood injury. Palpation of the right thigh revealed some mild discomfort. In a July 2002 Disability Report a private physician reported that the veteran had first been seen in February 1994 and was last seen in July 1998 for aggravation of prior knee and right leg injury. In July 2003, Dr. Gray, a private physician (who the veteran reported had treated him since 1990) said that the veteran sustained a compound femoral fracture in 1955. He was accepted into the military and sustained a recurrent injury to the right femur during service. His present disability, related to his "left" leg complaint, was as likely as not related to his injury which was made worse during service. This disability was well documented in his service records, which showed initial injury and disease while in the military. VA outpatient treatment records show that in 2004 the veteran was seen for a torn meniscus of the left knee. On VA examination in October 2007 it was stated that it was not possible to determine what the veteran's strength was in his right lower extremity immediately prior to his CVA but he seemed to get along well, working for many years in mental health counseling until the late 1998 range when his right thigh, calf, and knee did not permit him to continue either with physical or sedentary employment. The residuals of the preservice fracture appeared to have reacted to the extra stress of basic training but quieted down with six days of bed rest. Specifically, the veteran did report increased pain and some swelling of the right calf and thigh during the early phase of basic training and he reported a fall in January 1967 that seemed to have revealed a small area of right femoral and proximal tibial periosteal reaction that was as likely as not caused by the extra physical stress of basic training and the January 1967 fall. It appeared that this periosteal reaction was quite short lived and resolved after six days of bed rest and compresses. Since he worked for many years after service in non-physical occupations, it seemed less likely as not that the current right leg status had been affected beyond the natural course of the original bone injury in 1955 by several months of basic training and a mild bone bruise from the January 1967 fall. Analysis As for the claim for service connection of the right leg fracture, the veteran contends that, during his pre-teen years, he suffered a compound fracture injury to the right femur, and that the residuals of that injury became chronically aggravated during approximately a two-month active duty period. The veteran concedes that he did have a pre-existing condition due to right femur fracture injury; he does not contend that he entered active duty with absolutely no right leg problem and that such problem initially became manifested after commencing active duty. In fact, residuals of the preservice injury were found at the time of examination at service entrance. Since residuals of a right femoral fracture pre-existed the veteran's entrance into active service, the presumption of soundness is not applicable and the only remaining question is whether the pre-existing right femoral fracture residuals were aggravated, i.e., underwent a permanent increase during active service. As to this, the severity of the right femoral fracture residuals which is currently shown does not, by itself, establish that there was an increase in the disability during active service, i.e., inservice aggravation. Here again, the only competent medical evidence addressing this question of inservice aggravation are the statements of Dr. Gray and the VA medical opinion obtained in October 2007. Dr. Gray's opinion, in essence, amounts to no more than a conclusion that there was aggravation of the veteran's pre- existing disability of the right lower extremity. On the other hand, the 2007 VA opinion carefully reviewed the record to determine whether any increase during active service constituted a permanent increase in disability, and concluded that there was none. In this regard, the Board notes that although the veteran had indicated that he underwent extensive hospitalization during service for his right lower extremity symptoms, the service medical records show that he was initially hospitalized not for symptoms of the right lower extremity but for an upper respiratory infection. Moreover, although the veteran was discharged from service because of his right lower extremity symptoms, he was actually given a choice to remain on active duty, as opposed to being discharged from service and chose to be discharged. It was not until a re-injury in 1994, years after active service, that the record shows that the veteran again complained of symptoms relating to his right lower extremity. Also, the earliest recorded postservice clinical histories indicate that the veteran had episodically or intermittently had right lower extremity ever since the initial childhood injury and do not reflect that he had had such symptoms only since military service or had had in increase in such symptoms since military service. Accordingly, the Board gives greater probative value to the VA medical opinion of 2007 that the symptoms during military service resolved and the disability underwent no permanent increase in severity during active service. Accordingly, service connection for residuals of compound fracture of the right leg is not warranted. ORDER Service connection for hypertension is denied. Service connection for residuals of compound fracture of the right leg is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs