Citation Nr: 1005474 Decision Date: 02/05/10 Archive Date: 02/25/10 DOCKET NO. 05-03 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The Veteran had active service from January 1971 to March 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines, which, in pertinent part, denied service connection for hypertension. In October 2007, the Board remanded the appeal in order that additional notice pursuant to the Veterans Claims Assistance of 2000 (VCAA) and a copy of 38 C.F.R. § 3.310 effective October 2006 could be issued, that VA opinions regarding the etiology of the disabilities on appeal could be obtained, and that whether the Veteran desired to have a hearing could be clarified. In January 2009, the Board noted that this development had been completed, and that the Veteran had clarified that he did not desire to have a hearing. The Board found, however, that an additional remand was required to obtain another VA opinion, as the previously obtained opinion was inadequate to answer the question before the Board. Subsequently, an additional opinion has been obtained. After review of this opinion, the Board finds that all previously directed development has been completed and the claim is ripe for adjudication upon the merits. FINDINGS OF FACT Hypertension was not manifested during service or within one year of separation from service, and is not shown to be causally or etiologically related to service or to a service connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated during active service, may not be presumed to have been so incurred, and is not proximately due to or the result of a service connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The notification obligation in this case was accomplished by way of letters, to include a letter from the RO to the Veteran dated in March 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As neither the Veteran or his representative have indicated any prejudice caused by inadequate notice or timing error, the Board finds no basis for finding prejudice against the Veteran's appeal of the issue adjudicated in this decision on the basis of inadequate notice. See Shinseki v. Sanders, 129, S. Ct. 1696. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A, as indicated under the facts and circumstances in this case. The Board is aware that complete service treatment records are not of record, to include copies of the report of medical examination and medical history the Veteran would have completed at the time of separation in March 1993. Review of the record reveals that the RO sought these records, and the available medical and personnel records are of file. The Veteran has indicated knowledge that all service treatment records are not of file. The Board is aware that in such a situation it has a heightened duty to assist a claimant in developing his claim. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board is also aware that in a January 2010 Informal Hearing Presentation the representative indicated that another remand might be warranted to allow for an additional VA examination. The representative contended, in essence, that the August 2009 opinion obtained subsequent to the January 2009 remand was inadequate, citing the examiner described "a general rule" and did not specifically attribute the Veteran's hypertension to this phenomena and failed to notice or discuss internet research provided by the Veteran. As discussed further below, however, after careful review of this examination report, when considered with the other evidence of record, the Board finds that the August 2009 opinion was adequate to answer the question before the Board and that there is sufficient competent evidence on which to decide the claim. The Board is also cognizant that the VA opinions of record deal with secondary service connection and not direct service connection. In this case, although the Veteran has noted that his service treatment records are relevant to this claim and reported onset of "hypertension P.T.S.D." in 1992 (in service), the Veteran's articulation of how hypertension is related to service involves the contention that the disability is related to PTSD. He has not specifically detailed that he had high blood pressure readings in service or that a doctor found that he had hypertension in service. Under these circumstances, the Board finds that the Veteran's claim is that the hypertension is attributable to service- connected PTSD. The Board finds that without such a specific assertion or medical evidence of diagnosis in service the evidence does not establish that hypertension occurred in service or during the applicable presumptive period. There is no duty to provide another examination or opinion. See 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board will proceed to the merits of the Veteran's appeal. Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations provide that certain chronic diseases, including cardiovascular-renal disease, including hypertension, will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. See 38 C.F.R. §§ 3.307, 3.309. In order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and competent evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999). A disorder may be service connected if the evidence of record reveals that a veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. See 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability medically shown to be proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable 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). For valid secondary service connection claims, there must be (1) evidence of a current disability; (2) evidence of a service- connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background In the Veteran's October 2007 claim for service connection, he reported that he had "hypertension P.T.S.D.," but noted an onset date during service - 1992. As outlined above, the Board will consider direct service connection, but the Veteran's primary contention is understood to be that hypertension developed as a result of PTSD. Further, the representative's contentions go to the claim of secondary service connection. In a February 2002 VA psychiatric examination, the examiner noted that the Veteran had recently been diagnosed as having hypertension. This indicates an initial diagnosis many years after separation from service. Service connection for PTSD was established by a February 2005 rating decision. Service connection is also in effect for multiple gunshot wounds. In an April 2005 rating decision, the RO granted entitlement to a total disability rating based on individual unemployability, effective as of October 2001. In an April 2004 private opinion, a clinician concluded, in essence, that the Veteran's "sedentary lifestyle, chronic smoking, elevated cholesterol (based on his lipid profile), and [PTSD]" were predisposing factors for his hypertension. In the October 2007 remand, the Board outlined VA regulations that provide for service connection for disabilities caused or aggravated by service-connection disabilities. See 38 C.F.R. § 3.310. The Board determined that a remand was required, in part, to obtain an opinion regarding whether the Veteran's hypertension was caused or aggravated by his service-connected PTSD. This VA opinion was issued in March 2008. The report indicates that the VA clinician was asked to address the following question: Whether it is at least as likely as not that the Veteran's service-connected PTSD materially contributed to the development of hypertension, or whether it is as likely as not that PTSD permanently worsened or aggravated hypertension. The Board notes that this question is differently phrased than posed by the Board in the October 2007 Board remand. The clinician opined that the Veteran's essential hypertension was less likely as not aggravated by PTSD. The clinician provided as rationale that the Veteran's hypertension is of the essential type, idiopathic (unknown) in etiology. He continued that the disability was detected at an "age appropriate time," when most people in middle age can start to suffer from hypertension. Therefore, the clinician found that the disability could not be attributed solely to PTSD nor could the clinician find categorically that his hypertension was aggravated by PTSD. The clinician continued, by stating that the type of hypertension was multifactorial in origin. He noted that to attribute the hypertension to the service-connected PTSD would be "merely speculative in nature." In January 2009, the Board remanded in order to obtain another VA opinion from a different VA clinician. The examiner noted review of VA and private medical records. The examiner opined that it was less likely as not that the Veteran's hypertension was caused or aggravated by service connected PTSD. She provided as rationale that a variety of risk factors had been associated with essential hypertension including genetics, obesity and dyslipidemia, and smoking history. She continued by reporting that, although psychosocial factors which may be present in PTSD are correlated, previous studies on risk factors for hypertension have typically examined psychosocial factors individually and have yielded inconsistent findings. The examiner opined that the effect of PTSD on hypertension may commonly be a form of reactive hypertension which was temporary in nature and usually did not require treatment. She found, therefore, that PTSD would not worsen the underlying disability beyond its natural progression, but would rather, cause a temporary flare-up of symptoms. The Veteran, in April 2009, submitted a print out from a "Google" search off of the key words "PTSD" and "hypertension." The search results include references to other Board decisions. Analysis The Board finds that service connection for hypertension is not warranted. The Veteran has noted that his service treatment records are relevant to this appeal, and noted that "hypertension P.T.S.D." began in 1992, while in service. As discussed above, however, there are not treatment records from 1992 of file. The earlier records of file contain no blood pressure readings or findings relevant to hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Although the Veteran wrote that "hypertension P.T.S.D." began in 1992, he did not describe who provided a diagnosis, or symptoms he experienced of hypertension in service. He did not report findings from blood pressure readings. The December 2002 VA psychiatric examination records reveals that the Veteran was "recently" diagnosed as having hypertension. The examiner's use of the word "recently" indicates diagnosis within a few years of 2002. The Board finds this to be a finding of diagnosis many years after separation from service in 1993. On these findings, the Board finds that the preponderance of the evidence indicates that the Veteran was diagnosed as having hypertension more than one year after service, with no treatment or other manifestation of hypertension during service. The Board has considered the Veteran's lay statements, but the Veteran reporting that there was treatment in 1992 for "hypertension P.T.S.D." is outweighed by the medical evidence that the Veteran's hypertension was diagnosed many years after service. Without a description of the basis for the Veterans' contention, the Board finds that there was not an in service incurrence. Without a finding of in service incurrence, there is no continuity of symptomatology. See 38 C.F.R. § 3.303(b). As the evidence indicates that the disability began many years after service, service connection is not established on a direct basis or on a presumptive basis as a chronic disease. See 38 C.F.R. §§ 3.307, 3.309. Regarding secondary service connection, there are several opinions of record. In the April 2004 opinion, the clinician did not indicate specifically that PTSD has caused or aggravated hypertension, but did suggest a relationship. As discussed in the January 2009 Board remand, the March 2008 VA opinion was inadequate as the clinician was using a higher standard of proof than directed by VA law and regulation and the clinician stated a role of speculation in the opinion. In the August 2009 opinion obtained upon the second Board remand, the examiner noted review of relevant VA and private medical records. She opined that in her opinion PTSD did not permanently worsen hypertension or cause it. Although cognizant that the representative has indicated that this opinion is inadequate, the examiner did review relevant records and provide an opinion supported by adequate rationale. Although aware of the representative's contention that the examiner did not attribute the general findings listed to the Veteran's specific appeal, the Board finds that as this opinion adequately answers the question by indicating, in essence, that the clinician does not see a correlation between PTSD and a permanent change in hypertension. The Board finds this opinion of high probative value. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The preponderance of the medical evidence is against a finding of secondary service connection. The Board has considered the Veteran's lay assertion that PTSD has caused or aggravated PTSD. The Board has also considered the print out search results from "Google." The Board finds that this list of search results does not contain any specific findings or general relevant opinions that are probative as to this appeal. The Veteran has not been shown to possess medical training or expertise. His lay opinion as to medical causation is not probative to the facts of this appeal. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). That is, the Veteran's statements are asserted to support the contention that his hypertension is etiologically attributable to PTSD or service. The Board has already addressed his lay contention that there is continuity of symptomatology. The layperson's opinion on the question of causation is not probative. The opinion does not go toward a finding capable of lay observation or a description of symptoms and the Veteran's is not relating findings provided by a medical professional. That is, the required opinion deals with etiology of hypertension, to include the risk factors for hypertension and it is not probative on these points. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). After consideration of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine is not applicable and the claim for service connection for hypertension must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for hypertension, to include as secondary to PTSD, is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs