Citation Nr: 0815056 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-34 171 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an effective date earlier than July 19, 2007 for the award of a 20 percent rating for low back strain with degenerative disc disease. 3. Entitlement to a rating in excess of 10 percent for traumatic degenerative changes, right knee, X-ray evidence only. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. Donovan, Associate Counsel INTRODUCTION The veteran served on active duty from December 1982 to January 1993, with subsequent service in the Naval and Air Force Reserve. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2003 rating decision in which the RO denied the veteran's claim for service connection for hypertension. In December 2004, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2005, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2005. In January 2007, the veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. During the hearing, the undersigned granted a 60-day abeyance period for the submission of additional evidence. To date, no additional pertinent evidence has been received. The Board notes that the veteran was last issued a supplemental SOC (SSOC) regarding his claim for service connection for hypertension in November 2006. Medical evidence, including records of VA treatment from April to June 2007 and the reports of July 2007 VA examinations evaluating the veteran's spine and right knee have been associated with the claims file since November 2006. While the records of VA treatment include an assessment of hypertension, these records include no etiological opinion regarding hypertension. As medical evidence demonstrating current hypertension was of record and considered by the RO in the November 2006 SSOC, these treatment records are cumulative and not pertinent to the disposition of the appeal. Further, the July 2007 VA examination reports pertain to conditions other than hypertension, and not pertinent to the matter on appeal. Thus, while the evidence submitted since November 2006 was not accompanied by a signed waiver of RO consideration of the evidence, a remand of this matter for such consideration is unnecessary. See 38 C.F.R. § 20.1304 (2007). The Board's decision denying the claim for service connection for hypertension is set forth below. For the reasons expressed below, the remaining two claims identified on the title page-for which the veteran has completed the first of two actions required to place these matters in appellate status-are addressed in the remand following the order; these matters are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although the veteran had an elevated blood pressure reading in service, the first documented diagnosis of hypertension is more than one year after discharge from active service, and there is no competent evidence or opinion of a nexus between the veteran's current hypertension and either his active military service or any period of active duty for training (ACDUTRA) during his Reserve service. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a January 2003 pre-rating letter and a June 2005 post-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The June 2005 VCAA letter specifically informed the veteran to submit any evidence in his possession pertinent to the claim on appeal. The December 2003 RO rating decision reflects the initial adjudication of the claim after issuance of the January 2003 letter. After issuance of the June 2005 letter, and opportunity for the veteran to respond, the August 2005 SOC and November 2006 SSOC reflect readjudication of the claim. Hence, the veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The Board notes that the RO notified the veteran regarding the assignment of disability ratings and effective dates in a May 2007 post-rating letter. However, the timing of this notice-after the last adjudication of the claim-is not shown to prejudice the veteran. Because the Board's decision herein denies the claim for service connection, no disability rating or effective date is being, or will be, assigned. Accordingly, there is no possibility of prejudice to the veteran under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's service medical records, Reserve medical records, VA medical records, private treatment records, and the report of a VA examination conducted in August 2003. Also of record and considered in connection with the claim is a transcript of the January 2007 Board hearing, as well as various written statements provided by the veteran and by his representative, on his behalf. The Board recognizes that, during the January 2007 Board hearing, the veteran reported that he first had a high blood pressure reading in the mid-1980s, and that he sought outside help from a private physician through his first wife's insurance. The veteran said that he would call the insurance company to see if they could pull the records, however, the veteran has not submitted these records, or submit authorization to enable VA to request these records on his behalf. During the hearing, the veteran's wife reported that the veteran was treated by a private physician in June 1990, who indicated that decongestants the veteran was being given by the military were causing his blood pressure to rise, however, she added that they were not able to get copies of that treatment out of his medical records. Despite the fact that these records of private treatment from the mid-1980s and June 1990 have not been associated with the claims file, as will be discussed below, the service medical records include a high blood pressure reading, and the service connection claim is being denied because there is no medical evidence of a nexus between current hypertension and service. Records of private treatment during service could not provide medical evidence of a nexus between current hypertension and service. As such, a remand to obtain these private records would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the veteran, and is, thus, unnecessary. See Soyini v. Derwinski, 1 Vet. App. 540, 56 (1991). During the January 2007 hearing, the veteran also testified that he was being treated by his private physician, Dr. Keller. The Board notes that records of treatment by Dr. Keller from March 2003 to May 2005 have been associated with the claims file, but the veteran's testimony indicates that more recent records of treatment are available. However, the veteran testified that Dr. Keller had told him that it would be very hard for him to pinpoint when the veteran's high blood pressure actually started, because he did not see the veteran in service. As will be discussed below, the evidence of record already demonstrates current hypertension. As noted above, the service connection claim is being denied because there is no medical evidence of a nexus between that disability and service. As the veteran's own testimony indicates that any records of treatment by Dr. Keller since May 2005 do not include medical evidence of a relationship between hypertension and service-the very matter on which this case turns-a remand to obtain these records also is unnecessary. See Soyini, 1 Vet. App. at 56. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. 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, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and hypertension becomes manifest to a degree of l0 percent within 1 year from date of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board observes that, with respect to the veteran's Reserve service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing inactive duty training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. To warrant a diagnosis of hypertension for VA compensation purposes, the veteran must meet the criteria delineated in 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (defining hypertensive vascular disease or hypertension for purposes of that section as diastolic blood pressure predominantly 90 mm. or greater and isolated systolic hypertension as systolic blood pressure predominantly 160 mm. or greater with diastolic blood pressure of less than 90mm). Considering the record in light of the above, the Board finds that service connection for hypertension is not warranted. The service medical records from the veteran's period of active service reflect an elevated blood pressure reading in December 1992. However, all other blood pressure readings in the service medical records are normotensive. Blood pressure reading on separation examination in December 1992 was 130/84. The veteran was afforded a VA examination to evaluate conditions other than hypertension in February 1993. Blood pressure reading during that examination was 132/86. Records of VA treatment from November 1993 to July 2005 include hypertensive blood pressure readings and findings of and treatment for hypertension. A record of VA treatment from February 1996 noted that the veteran had no history of hypertension. During VA treatment in July 1996, the veteran's blood pressure reading was 144/90, and his physician, Dr. Sagady, noted that his blood pressure was borderline, but that he had no history of hypertension. By July 1997, however, the veteran was on blood pressure medication, as a record of VA treatment that month noted that his blood pressure was OK on medication. Subsequent VA treatment records reflect ongoing findings of and treatment for hypertension, however, none of these records includes any comment or opinion regarding etiology of hypertension. Records of private treatment from February 1998 to May 2005 also reflect findings of and treatment for hypertension, with the first finding of hypertension in December 1999, when the assessment was that the veteran's blood pressure was consistent with hypertension, and he was started on Norvasc. Reserve medical records from March 1994 to November 2002 also include hypertensive blood pressure readings in March 1994 and December 1999. The veteran was afforded a VA examination to evaluate hypertension in August 2003. The examiner reviewed the veteran's claims file and acknowledged such review in the examination report. The veteran reported that he was first told that he had elevated blood pressure in the late 1980s, and that he was told that his blood pressure would be monitored periodically, but that treatment was not indicated. He added that he was subsequently treated at the Phoenix VA Medical Center (VAMC) in the late 1990s, at which time he was started on anti-hypertensive therapy, which, he reported, improved blood pressure readings. He stated that his first antihypertensive was Norvasc, and that his current antihypertensive regimen included Coreg and Norvasc. The examiner noted that the veteran's claims file included numerous blood pressure readings from December 1982 to the time of discharge from military service. The examiner noted that blood pressure was elevated at 132/92 in December 1992, but that blood pressure became more stable, as evidenced by a blood pressure reading of 116/70 in May 1994, with a weight of 218 pounds. On examination, blood pressure reading was 139/89. The impression was hypertension presently controlled on multiple antihypertensive therapies. The examiner opined that she was unable to substantiate that blood pressure was chronically elevated while in the military service. During the January 2007 hearing, the veteran testified that he was first told that he had a possibility of having high blood pressure in the mid-1980s when he sought outside help from a private physician through his first wife's insurance. The veteran's wife testified that the veteran saw a private physician around June 1990 and that physician told him that decongestants he was being given by the military were causing his blood pressure to rise. The veteran stated that, after discharge, he sought treatment at the VAMC in Palo Alto, where he had lab work and X-rays done, but no blood pressure results. The veteran and his wife reported that Dr. Sagady at the Phoenix VAMC was the first physician who diagnosed the veteran with hypertension, in 1995 or 1996. While the veteran asserts that his current hypertension is related to service, the Board finds that the medical evidence simply does not support this assertion. As indicated above, the record clearly demonstrates that the veteran had at least one elevated blood pressure reading while in service and at least two elevated readings during his Reserve service. In his December 2004 NOD, the veteran asserted that medication used to treat sinus infections and upper respiratory infections in service had side effects which included high blood pressure. The veteran's wife made the same assertion during the January 2007 hearing. However, there is simply no diagnosis of hypertension in service or during Reserve service. In fact, the first documented diagnosis of hypertension is in December 1999. The Board notes that the record of VA treatment from July 1997 indicate that the veteran's blood pressure was OK on medication, thus suggesting that he was being treated for hypertension. Even assuming, arguendo, that the July 1997 record of VA treatment reflects treatment for diagnosed hypertension, this treatment was more than one year after service discharge, and, hence, outside of the period for presumptive service connection for hypertension. See 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board further notes that even the first hypertensive blood pressure reading noted in the Reserve medical records is in March 1994, also more than one year after separation from service. In addition, while the medical evidence establishes that the veteran does have current hypertension, there is simply no medical evidence or opinion even suggesting a relationship between hypertension and service, to include any period of ACDUTRA, and neither the veteran nor his representative has identified, presented, or alluded to the existence of any such medical evidence or opinion. In short, there is no competent medical evidence to support the claim for service connection for hypertension. In adjudicating this claim, the Board has, along with the medical evidence, also considered the appellant's oral and written assertions, as well as those advanced by his representative, on his behalf; however, none of this evidence provides a basis for allowance of the claim. As indicated above, the claim turns on the medical matter of etiology, or medical relationship, between current disability and service-a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the Board finds that the claim for service connection for hypertension must be denied on both direct and presumptive bases. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hypertension is denied. REMAND Regarding the other two claims identified on the title page, the Board notes in that a March 2006 rating decision the RO, inter alia, continued a 10 percent rating for low back strain with degenerative disc disease and a noncompensable rating for traumatic degenerative changes, right knee, X-ray evidence only. The veteran expressed disagreement with these two matters in January 2007, and an SOC on these two issues was furnished in June 2007. The veteran did not perfect an appeal of these two issues within 60 days of issuance of the SOC. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Subsequently, a November 2007 rating decision granted an increased rating of 20 percent for low back strain with degenerative disc disease and granted an increased rating of 10 percent for traumatic degenerative changes, right knee, X- ray evidence only. Both increased ratings were effective July 19, 2007. In a December 2007 statement, the veteran expressed disagreement with the effective date of July 19, 2007 for the increased rating of 20 percent for his service- connected low back disability, and with the increased rating of 10 percent for degenerative changes, right knee. An NOD has been filed with the effective date assigned for the increased rating of 20 percent for the veteran's service connected low back strain and the increased rating assigned for traumatic degenerative changes, right knee; however, the RO has yet to issue a SOC with respect to those claims, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, these matters must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. Accordingly, these matters are hereby REMANDED to RO, via the AMC, for the following action: 1. The RO must furnish to the veteran and his representative an SOC with respect to the November 2007 assignment of an increased rating of 20 percent for low back strain with degenerative disc disease, effective July19, 2007, and the assignment of an increased rating of 10 percent for traumatic degenerative changes, right knee, along with a VA Form 9, and afford them the appropriate opportunity to submit a substantive appeal perfecting an appeal on those issues. 2. The veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected within 60 days of the issuance of the SOC. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs