Citation Nr: 1008580 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 08-35 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. J. Turnipseed, Counsel INTRODUCTION The Veteran had active service from May 1967 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above. FINDINGS OF FACT 1. The competent and probative evidence of record preponderates against a finding that the Veteran has a current respiratory disorder that is due to any incident or disease incurred in or aggravated by active military service. 2. The competent and probative evidence of record preponderates against a finding that the Veteran currently has hypertension that was incurred in or aggravated by active military service, and hypertension is not shown to have been manifested to a compensable degree within one year after separation from service. CONCLUSIONS OF LAW 1. A respiratory disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). 2. Hypertension was not incurred in or aggravated by active military service, nor may hypertension be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2009). Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as cardiovascular-renal disease, including hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). The Court has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis of a condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has asserted that service connection for a respiratory condition and asthma is warranted because the medical evidence shows the conditions were diagnosed in service and have continued since service. Respiratory Condition The service treatment records reveal that, at the Veteran's pre-enlistment examination in December 1966, his lungs and chest were normal and the Veteran denied having asthma or trouble with his ear, nose, and throat. In May 1969, the Veteran was diagnosed with bronchitis after presenting for treatment complaining of a cough and head cold. Subsequent treatment records show the Veteran continued to complain of a cough and was variously diagnosed with an upper respiratory infection (URI) with bronchitis and nasopharyngitis with bronchitis. See service treatment records dated May and November 1970. At his separation examination in March 1971, the Veteran reported having shortness or breath and ear, nose, and throat trouble. He denied having asthma. The examining physician did note that the Veteran had shortness of breath with one episode of bronchitis in 1969; however, the examiner stated that the condition had resolved with no complications or sequelae, providing evidence against this claim. The post-service treatment records reflect that the Veteran has a history of mild asthma; however, there is no indication as to when, where, or by whom the Veteran was initially diagnosed with asthma. See private medical records from Dr. H.V. dated February 2006 to October 2007. At the February 2008 VA examination, the Veteran reported that he was having shortness of breath at the time he was admitted for treatment of congestive heart failure in 2000 and he believes he was diagnosed with asthma at that time. He also reported that, in 2004, a pulmonologist told him that his breathing problems were due to his weight. The examiner noted that the Veteran is able to walk for short distances at a time due to dyspnea and that the Veteran has not had asthmatic attacks. The Veteran was noted to have wheezing, which responds to an inhaler. After reviewing the claims file and conducting a clinical examination of the Veteran that included pulmonary function tests, the examiner diagnosed the Veteran with asthma and opined that it is less likely than not that the Veteran's current asthma is related to any condition that occurred during active duty. In making this determination, the VA examiner noted that the Veteran was seen once in 1969 for bronchitis with shortness of breath, which was noted to be resolved, without any complications or sequela, at the discharge examination. Based on the foregoing, the Board finds the preponderance of the evidence is against the grant of service connection for a respiratory disorder. While the Veteran was shown to have bronchitis and an upper respiratory infection during service, the evidence reflects that his respiratory problems had resolved by the time he was discharged from service, without any complications or sequelae. The Board also notes the Veteran has not provided or identified medical evidence that would show he complained of or received treatment for asthma during his first post-service year. In fact, the evidence reflects that the Veteran reported being diagnosed with asthma in 2000, more than 20 years after he was separated from service. See February 2008 VA examination report. Nevertheless, the only post-service medical documentation of asthma is in private medical records dated from February 2006 to October 2007, which noted the Veteran has a history of mild asthma. There is no indication as to when the initial diagnosis of asthma was rendered; nor is there any indication as to the etiology of the Veteran's asthma. It is unclear if the Veteran believes he has had this problem since service, or whether he believes his current problem is related to the problem he had during service (with a long period of time without this condition). In any event, with regard to any possible statement that he has had this problem continuously since service, the Board must find the gap in the evidentiary record militates against a finding that any respiratory condition manifested during service caused or resulted in a chronic disorder that has lasted decades, and also rebuts any assertion of continuity of symptomatology since separation from service. See 38 C.F.R. § 3.303(b); see also Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (to the effect that service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Further, in evaluating the ultimate merit of this claim, the Board finds most probative the medical opinion provided by the February 2008 VA examiner. As noted, the examiner reviewed the Veteran's claims file, including the service treatment records, and examined the Veteran before finding that it is less likely than not that the Veteran's current asthma is related to any condition manifested during service. The Board finds probative that the examiner's opinion is supported by the other evidence of record, including the service treatment records and the Veteran's own statements as to when he was diagnosed with asthma. The Board also finds probative that there is no opposing medical or lay opinion of record that suggests the Veteran's asthma is related to his military service, to include the diagnoses of bronchitis and URI shown therein. Therefore, based on the foregoing, the Board finds the preponderance of the evidence is against the grant of service connection for a respiratory disorder, and the benefit-of- the-doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hypertension Under VA regulations, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 U.S.C.A. § 4.104, Diagnostic Code (DC) 7101 (2009). The Veteran has asserted that he was diagnosed with hypertension at some point in the 1970s. See February 2008 VA examination. He has also asserted that he was told he had elevated blood pressure during service while at sick call for treatment of bronchitis. The service treatment records reflect that the Veteran's blood pressure reading was 120/50 at his pre-enlistment examination in December 1966. In December 1969, the Veteran had an elevated blood pressure reading of 130/90 while receiving treatment for swollen ankles and legs. There is no indication that the elevated blood pressure reading was subsequently confirmed or that the Veteran continued to exhibit elevated blood pressure throughout the remainder of service. At his separation examination in March 1971, the Veteran's blood pressure was 130/84. The examining physician noted the Veteran had one episode of high blood pressure in December 1969, but he stated there were no compilations or sequelae related thereto. The post-service medical evidence reflects that the Veteran has a long-standing history of hypertension. See private medical records dated from February 2006 to October 2007; see also VA outpatient treatment records. The first time the Veteran is shown to have a diagnosis of hypertension is in March 2006, at which time a 30 year history of hypertension is noted. The post-service medical evidence does not contain any indication as to the etiology of the Veteran's hypertension. At the February 2008 VA examination, the Veteran reported that he was diagnosed with hypertension sometime in the 1970s. After reviewing the claims file, the VA examiner noted the Veteran's blood pressure readings at pre- enlistment, separation, and during service and, based on this information, the examiner stated there is insufficient evidence to find the Veteran met the requirements for a diagnosis of hypertension during service. Based on the foregoing, the Board finds the preponderance of the evidence is against the grant of service connection for hypertension. While the Veteran had one elevated blood pressure reading during service, there was no subsequent diagnosis of hypertension and no complications or sequelae of the elevated blood pressure reading shown during the remainder of service, including at his separation examination. In addition, the Veteran is not shown to have manifested or been diagnosed with hypertension until March 2006, which is more than 20 years after he was separated from service. The Board does note that the Veteran was noted to have a 30 year history of hypertension in March 2006; however, this information dates the Veteran's diagnosis of hypertension back to 1976, which is still five years after separation from service. In evaluating this claim, the Board finds probative that no medical professional has related the Veteran's current diagnosis of hypertension to his military service. In this regard, the Board notes that the February 2008 VA examiner did not specifically state whether it is likely or not that the Veteran's hypertension is related to service; however, the Board finds that an additional medical opinion is not necessary, and that the Veteran was not prejudiced thereby, because there is no event, injury, or disease in service to which the Veteran's current hypertension can be related. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this context, the Board notes that the elevated blood pressure reading during service was acute and transitory, given the lack of evidence showing an elevated blood pressure reading or diagnosis of hypertension until five years later, at best. Indeed, this gap of years in the record preponderates against a finding that the in-service elevated blood pressure reading represented a chronic disorder, and also rebuts any assertion of continuity of symptomatology since separation from service. See 38 C.F.R. § 3.303(b); Maxson, supra. The Board does not doubt the Veteran sincerely believes his hypertension is related to military service. However, the determination as to medical etiology in this case requires a sophisticated medical opinion, and there is no medical opinion or evidence of record that suggests the Veteran's hypertension is related to his military service. The Board has considered the Veteran's statements about why he believes his hypertension is related to service; however, there is no indication that the Veteran has the requisite knowledge of medical principles to provide an opinion on matters involving medical causation or etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In summary, the Board finds there is no evidence of a hypertension disability during service or for at least five years thereafter; nor is there evidence of a medical nexus between the Veteran's current hypertension and military service. As such, the Board finds the preponderance of the evidence is against the grant of service connection for hypertension, and the benefit-of-the-doubt is not for application. See Gilbert, supra. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 U.S. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2007 that fully addressed all required notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate his claims and of the Veteran's and VA's respective duties for obtaining evidence. The July 2007 letter also informed the Veteran of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained the Veteran's service and post-service treatment records. In this regard, it appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for a respiratory disorder is denied. Entitlement to service connection for hypertension is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs