Citation Nr: 0815055 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-35 895A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to direct service connection for hypertensive vascular disease. 2. Entitlement to direct service connection for hypertensive vascular disease secondary to prostate cancer with penile dysfunction. 3. Entitlement to service connection for a low back disorder, described as lumbar degenerative changes with chronic pain. 4. Entitlement to service connection for arthritis of both hands. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The veteran served on active duty from December 1966 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. By rating action in January 2004 service connection was denied for hypertension. Subsequently by rating action in April 2006 service connection was denied for a low back disorder and arthritis of both hands. The claim of entitlement to service connection for hypertension secondary to prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Hypertension was not manifested during service or to a compensably disabling degree within one year of separation from active duty service, and there is no competent medical evidence showing that hypertension is directly related to active duty service. 2. The veteran is not shown to have a low back disorder that is due to any event or incident of service, lumbar arthritis was not manifested to a compensable degree within one year of separation from active duty service, and there is no competent medical evidence that a low back disorder is related to active duty service. 3. The veteran is not shown to have arthritis of the bilateral hands that is due to any event or incident of service, arthritis of the hands was not manifested during service or to a compensable degree within one year of the veteran's service separation, and there is no competent medical evidence that the veteran currently has arthritis of the hands CONCLUSIONS OF LAW 1. Direct hypertension was not incurred in or aggravated by active military service. and it may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). 2. A low back disorder was not incurred in or aggravated by active military service, and lumbar arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 3. Arthritis of the hands was not incurred in or aggravated by active military service, and arthritis of the hands may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in May 2003, December 2005, and August 2006 of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. VA informed the claimant of the need to submit all pertinent evidence in his possession. While the appellant did not receive full notice prior to the initial decisions, after pertinent notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and the hypertension claim was readjudicated in the April 2007 supplemental statement of the case, and the claims for a lower back disorder and arthritis of both hands were readjudicated in the November 2006 statement of the case. The claimant was provided the opportunity to present pertinent evidence. There is not a scintilla of evidence of any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, neither the appellant nor his representative has suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Criteria 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; 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). Certain chronic disabilities, such as hypertension and arthritis may be presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 30 (1999). In addition, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Of course, it goes without saying that every medical opinion must be within the scope of expertise of the medical professional who proffered it, Layno v. Brown, 6 Vet. App. 465 (1994), and a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. The veteran contends that he currently suffers from hypertension, a low back disorder, and arthritis of both hands as a result of military service. He requests that he be afforded the benefit of the doubt. a. Hypertension Service medical records reveal that in the October 1966 enlistment examination the veteran reported high blood pressure. On examination his blood pressure was within normal limits (130/80). No other blood pressure reading was recorded during the veteran's service. At his October 1969 separation examination the veteran did not report high blood pressure. The blood pressure reading itself was crossed out and is illegible. A note on the examination report states that the veteran signed a waiver for further medical care for hypertension. Significantly, hypertension was not diagnosed in-service, to include at service separation. In January 2005 the veteran's representative submitted a questionnaire filled in and signed by Jose T. Bonoan, M.D. Dr. Bonoan reported treating the veteran for almost four years for hypertension. He opined that the veteran's hypertension was more likely than not a result of his military duty and/or his service connected prostate cancer with loss of penile dysfunction. Medical records from Dr. Bonoan's office do show treatment for hypertension. The veteran was afforded a VA examination in September 2007. Blood pressure readings were within normal limits. The veteran's heart beat rate and rhythm were normal. There were no murmurs, gallops or rubs. There was no evidence of hypertensive heart disease, and no atherosclerotic complications of hypertension were noted on examination. The diagnosis was essential hypertension. The examiner noted that the date of onset was unclear and he could not resolve the issue of service connection for hypertension without mere speculation. He further noted that: The patient has one blood pressure reading documented in the service medical records. This reading was on admission and was in the prehypertensive range. Repeat blood pressure testing would have been necessary to determine whether the patient had no hypertension, prehypertension or established hypertension at this juncture. The patent's discharge physical had a blood pressure reading recorded. However, it was scratched out. Cannot comment on diagnosis of hypertension. There is no [legible] reading. Furthermore a diagnosis of hypertension when required three separate readings in the hypertensive range. Hence I cannot support whether the diagnosis [has] indeed ever been made. Analysis Upon review of all of the evidence of record, both lay and medical, the Board finds that the preponderance of the evidence is against the claim. While the appellant currently has hypertension, the record is devoid of any competent evidence directly relating hypertension directly to service. Consequently, direct service connection, i.e., on the basis that chronic disability became manifested in service and has persisted since, is not warranted. Moreover, as hypertension was not compensably disabling within a year of the veteran's separation from active duty, presumptive service connection is not warranted. A VA examiner in September 2007 reviewed all of the evidence of record and provided an opinion that the veteran's hypertension was not related to his period of service. The veteran had reported a history of hypertension since 1967 however there are no blood pressure readings submitted post- service until the VA examination in September 2007. As such, the date of the onset of hypertension is unclear. In addition there was no evidence that compensably disabling hypertension was shown within any presumptive period after service. The Board recognizes that Dr. Bonoan's January 2005 letter attributed the veteran's hypertension to service. The Board, however, assigns greater weight to the opinion provided by the VA examiner in September 2007, because there is no indication that Dr. Bonoan thoroughly reviewed the claims file. Moreover, he did not provide any basis for his opinion concluding that the appellant has hypertension due to service due to a single reading that was within normal limits (130/80) for VA purposes. Cf. 38 C.F.R. § 4.104, Diagnostic Code 7101. As such the Board concludes that this opinion has minimal probative value. As to assigning greater weight to the opinion provided by the VA examiner, the Board acknowledges that lay witnesses are competent under the law to describe symptoms they have seen or experienced. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992). However, for purposes of obtaining a medical opinion as to the origins of a disability, the VA examiner was not obligated to accept the veteran's subjective statements. In fact, the examiner's job is just the opposite. He was to review the record and ascertain whether it included objective medical facts that supported the veteran's assertions. Then using those facts, along with his medical expertise, provide an opinion as to the origins of the claimant's disability. This is what was done. Therefore, the Board assigns more evidentiary weight to the September 2007 VA medical opinion. Given the evidence and the September 2007 VA medical opinion, the Board concludes that hypertension was not incurred in- service, and it may not be presumed to have been so incurred. b. Low back disorder Service medical records in May 1969 reveal that the veteran fell down the stairs. He suffered localized pain at right L4-L5, over the spine. There was no severe point tenderness, deformity, or radiation to the extremities. The impression was a back sprain. He was placed on light duty for three days. There were no further complaints or treatments during service. At his October 1969 separation examination the veteran's spine was clinically evaluated as normal. The veteran was afforded a VA examination in January 2006. The claims file was reviewed. The examiner noted that the veteran fell sustaining lower back pain in May 1969. At that time he had full range of motion, and was placed on light duty for three days. There was no further treatment noted in service. He reported no post service history of back trauma. At the present time the veteran reported a three year history of back pain which radiated to the lower extremities. He was followed by his primary care physician. The diagnoses were chronic low back pain, compression deformity of L2 body, and mild degenerative changes of the lower lumbar vertebrae. In a March 2006 addendum, the examiner opined that it was less likely as not that the veteran's back condition was caused by military service. He opined that : The [claims file] shows patient has low back pain due to a fall in 1965-1969, and there are no further details of the treatment found in the [claims file]. Even after the military service, there is no evidence of any treatment for the back injury or back treatment until patient's history saying he had low back pain in 2001, which is at least 40 years since the service. While the appellant has a current low back disorder, the record is devoid of any medical opinion evidence relating this disorder to service or to any event therein. Consequently, direct service connection, i.e., on the basis that chronic disability became manifested in service and has persisted since, is not warranted. Moreover, as lumbar arthritis was not compensably disabling within a year of the veteran's separation from active duty, presumptive service connection is not warranted. The absence of any competent medical evidence showing a nexus to service and/or a continuity of symptomatology since discharge is fatal to this claim. Moreover, the appellant as a lay person untrained in the field of medicine is not competent to offer an opinion addressing the etiology of his alleged disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Hence, the preponderance of the competent medical evidence of record is against his assertions. Therefore, entitlement to service connection is denied c. Arthritis of the hands Service medical records are entirely silent as to any bilateral hand injuries or arthritis of the hands. Likewise while the veteran reported a history of arthritis of the hands during a September 2006 VA outpatient clinic visit, there was neither then nor now a diagnoses of hand arthritis offered. In the absence of competent evidence of a present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In Brammer, the United States Court of Appeals for Veterans Claims (Court) stated that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability." The Court further stated that where the proof is insufficient to establish a present disability there can be no valid claim for service connection. Id. Further, service connection requires competent evidence linking the claimed disability to service. Accordingly, as the preponderance of the evidence is against finding a current disability, and as there is no competent evidence linking a current disability to service, the preponderance of the evidence is against this claim, and the benefit of the doubt doctrine is not for application. The claim must be denied. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to direct service connection for hypertension is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for arthritis of both hands is denied. REMAND As noted, the veteran has presented competent evidence from a private provider linking hypertension to his service connected prostate cancer. While the basis for this opinion was not provided, in light of Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA is not permitted to base decisions on its own unsubstantiated medical conclusions), it follows that further development is in order. Therefore, this case is REMANDED for the following action: 1. The RO should contact Jose T. Bonoan, M.D., and afford him an opportunity to further explain the reasons and bases for his January 2005 conclusion that hypertension was more likely than not related to the appellant's prostate cancer with a loss of penile function. Should Dr. Bonoan fail to respond the veteran and his representative must be contacted and so informed. 2. Thereafter, the RO must refer the claims file to a VA cardiovascular specialist. Following the specialist's review of the claims file she/he must offer an opinion explaining whether it is at least as likely as not that hypertension is caused or aggravated by the appellant's service connected prostate cancer with penile dysfunction. Complete reasons and bases must accompany any opinion offered. The specialist must address any opinion offered by Dr. Bonoan. 3. After the development requested above has been completed to the extent possible, the issue of entitlement to service connection for hypertension secondary to prostate cancer with penile dysfunction must be readjudicated. If the benefit sought on appeal remains denied the veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs