Citation Nr: 0813570 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-22 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served as a member of the National Guard from June 1968 to October 1971, which included a period of active duty for training (ACDUTRA) from September 1968 to January 1969. He subsequently had active service from October 1971 to May 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Detroit, Michigan, Regional Office (RO). This appeal was the subject of a September 2005 hearing before the undersigned Veterans Law Judge, and was remanded to the RO by the Board in December 2005. FINDINGS OF FACT 1. The veteran is not shown to have had hypertension during service or within one year of discharge from service. 2. There has been no demonstration by competent clinical evidence of record that there is an etiological relationship between the veteran's hypertension and service. 3. There has been no demonstration by competent clinical evidence of record that the veteran's hypertension was caused or aggravated by service-connected disability, to include tinnitus. CONCLUSION OF LAW 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 aggravated by, service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a), 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Notice 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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 the elements of the claim as reasonably contemplated by the application. An April 2003 VCAA letter informed the appellant of what evidence was required to substantiate his claim for service connection for hypertension on a secondary basis; and A March 2006 VCAA letter informed the appellant of what evidence was required to substantiate his claim for service connection for hypertension, both on a direct and secondary basis. The letters also informed him of his and VA's respective duties for obtaining evidence. The March 2006 letter further requested that the veteran submit any additional evidence in his possession pertaining to his claim. In addition, the March 2006 letter explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although VCAA notice was not completed prior to the initial adjudication, the claim has been readjudicated thereafter. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to assist With regard to the duty to assist, the claims file contains service medical records, reports of post-service treatment, and reports of VA examinations. VA was under no further duty to obtain additional medical opinions or examinations in this matter, because there is no indication by competent medical evidence that the veteran's hypertension began during service, is related to any incident of service, or is caused or aggravated by any service connection disability. See 38 U.S.C.A. § 5103A(d). The etiology of hypertension is a complex medical matter not susceptible to lay observation, so that the veteran's unsupported lay speculation does not serve as an indication of such a nexus. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). Additionally, the claims file contains the veteran's statements in support of his claim. The Board has reviewed such statements and concludes that he has not identified further relevant available evidence not already of record. Although it appears likely that the veteran is receiving treatment for hypertension from a private physician since he is apparently prescribed medication for hypertension, the veteran did not identify records of any such treatment records, obtain them himself and submit them to VA, or submit any relevant evidence in his possession, in response to the VCAA letters dated in April 2003 or March 2006. Without the cooperation of the veteran, further attempted development of the medical evidence in this regard is futile. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all identified available evidence that could substantiate the claim has been obtained. There is no identification in the file of additional available relevant records that have not yet been obtained. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. 38 C.F.R. § 3.303(b). 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). In order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic disabilities, including hypertension, are presumed to have been incurred in, or aggravated by, service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for the Federal Circuit has held that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding presumption of service connection for colon disability to be rebutted by clear and convincing evidence in the form of absence of post- war medical records of treatment for colon-related problems for period of over 40 years). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service- connected disease or injury." 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition may also be service-connected under 38 C.F.R. § 3.310(a). Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Analysis Service medical records indicate that the veteran experienced a substantial noise-related hearing loss during service. He is service-connected for bilateral hearing loss, tinnitus, an anxiety disorder, a sleep disorder, and headaches. Blood pressure at an April 1968 induction examination was measured at 120/84. Blood pressure at a January 1969 examination was measured at 124/82. Blood pressure at his April 1972 service discharge examination was measured at 120/80. At these examinations clinical evaluation of the veteran's heart and vascular system were normal. There is no indication that the veteran had hypertension during service or within a year of service. Thus, entitlement to service connection for hypertension on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309(a). On VA examination in October 1979, the veteran's blood pressure was 120/80. His blood pressure as measured during VA hospitalization in April 1987 was 124/80. No history or diagnosis of hypertension was indicated. A history of hypertension was noted at VA audiological treatment in October 2002. A blood pressure measurement during VA treatment in March 2003 was 146/76, although no diagnosis or history of hypertension was noted. At a September 2004 VA psychiatric examination, the diagnoses included hypertension. At an October 2004 record of VA neurological examination, the veteran's blood pressure was measured at 150/105 sitting, standing, and in the supine position. At a September 2005 Board hearing, the veteran expressly chose not to provide testimony as to the matter of entitlement to service connection for hypertension, claimed as secondary to tinnitus. (See September 2005 Board Hearing Transcript at page 2.) In December 2005 the Board granted claims for service connection for a headache disorder, an anxiety disorder, and a sleep disorder, based on multiple medical opinions indicating that these conditions were caused or aggravated by the veteran's service-connected tinnitus. The Board remanded the claim for service connection for hypertension for proper VCAA notice to be issued, and for a VA compensation examination including an opinion as to whether the veteran's hypertension is related to service or any service-connected disability, including tinnitus. In January 2006, the RO implemented the Board's December 2005 grants of service connection for a headache disorder, an anxiety disorder, and a sleep disorder. At a VA examination in April 2006, the examiner noted that the veteran had been on treatment for high blood pressure since June 2005. Blood pressure was 160/100 on three repeated measurements. The veteran was currently prescribed Atenolol, but he reported that he had been out of the medication for the last three days. He reported high-pitched constant ringing all day long. He also reported hearing loss and had hearing aids. On physical examination of the ears, there were no abnormal findings and there was no evidence of ear disease. There were no abnormal findings on examination of the heart, lungs, or extremities. Blood testing and urinalysis were unremarkable. The examiner diagnosed the veteran as having suboptimally controlled blood pressure, which was not caused or aggravated by service-connected tinnitus. Although the examination request sent to the examiner focused on the matter of entitlement to hypertension as secondary to service-connected tinnitus, the examiner elaborated in his written opinion that there was no relationship between the veteran's hypertension and service or any service-connected disability. Hypertension is not shown until many years after service. As of VA hospitalization in April 1987, blood pressure measurements were 124/80. During VA audiological treatment in November 2002, a past medical history of hypertension was indicated, although the report of treatment does not reflect that the veteran's blood pressure was measured. At VA treatment in March 2003, blood was measured as 146/76, though no history or diagnosis of hypertension was indicated. In VA examination reports, a diagnosis of hypertension and elevated blood pressure readings appear in September and October of 2004, respectively. The fact that hypertension was not treated or diagnosed for many years after service is a factor weighing substantially against the veteran's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The April 2006 VA examination report indicates that the veteran first received treatment for hypertension in June 2005. Blood pressure at the April 2006 VA examination was measured at 160/100, after a number of days of the veteran failing to take his prescribed blood pressure medication. As to the matter of entitlement to service connection on a secondary basis, the April 2006 VA examiner flatly opined that the veteran's hypertension was not caused or aggravated by tinnitus, and was not related to service or any service- connected disability. There is no competent medical opinion of record indicating that the veteran's hypertension is related to service or any service-connected disability. The only competent medical evidence of record specifically addressing the veteran's contentions on appeal is that of the April 2006 VA examiner, which weighs strongly against the claim. The etiology of hypertension is a matter not susceptible to lay observation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). As a result, the veteran's unsupported lay assertion that his hypertensin is due to tinnitus or other service-connected disabilities is of no probative weight in this matter. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application, and entitlement to service connection for hypertension is not warranted. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs