Citation Nr: 1012203 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 07-39 992 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to service connection for hypertension. WITNESSES AT HEARING ON APPEAL Appellant and Wife ATTORNEY FOR THE BOARD J.B. Freeman, Associate Counsel INTRODUCTION The appellant served on active duty from February 1981 to June 1981 and from November 2001 to April 2002, with additional inactive service with the Indiana Air National Guard from 1981 to 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the RO in Indianapolis, Indiana, which denied service connection for hypertension. Evidence has been received by the Board in March 2010, subsequent to the final consideration of the claim by the RO. This evidence is duplicative of evidence received and considered by the RO in the February 2009 Supplemental Statement of the Case. The Board may consider the appeal. 38 C.F.R. § 20.1304. The appellant and his wife testified before the undersigned at a February 2010 videoconference hearing. A transcript has been associated with the file. FINDING OF FACT Hypertension is not related to a disease or injury in service and did not manifest to a compensable degree within one year of service separation. CONCLUSION OF LAW The appellant's hypertension was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim for service connection for hypertension. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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) (2009). The United States Court of Appeals for Veterans Claims (Court) held that 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a letter dated in June 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Board also concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. The appellant's treatment from his inactive period of service indicate that he has a non-military primary care provider and the appellant testified before the undersigned that he did not receive treatment through VA. Some private records relating to a January 2003 knee surgery were in the appellant's inactive service records. The appellant mentioned during testimony before the RO that he had private treatment through a Sullivan Family Practice, records from which he thought had been associated with the record. No such records are present in the file. The appellant has not completed an authorized release form and provided it to VA so that the RO might obtain these records on his behalf. This is in spite of the fact that the June 2006 letter instructed him provided him with an authorized release form and informed him of the need to submit such evidence. While VA has a statutory duty to assist the appellant in developing evidence pertinent to a claim, the appellant also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The appellant underwent a November 2006 VA examination with a December 2006 followup, which diagnosed hypertension, but did not provide a medical opinion as to whether the disorder was related to active service. The Board concludes an examination for such an opinion is not needed in this case because the only evidence indicating the appellant's current disability is related to service is his own lay statements. As will be discussed below, the appellant has provided numerous and conflicting statements regarding his hypertension. Importantly, for the statements to be true, those he made during his active and inactive service would have to be false. The Board has determined that the appellant is not credible. Without his lay evidence, there is no competent evidence of record demonstrating connection between the appellant's hypertension and active duty service. An examination for an opinion is not warranted. See McLendon, supra. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection The appellant contends that he has hypertension as a result of service. For the reasons that follow, the Board concludes that service connection is not warranted. Under the VA regulations, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnosis Code 7101, Note (1). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The appellant was seen for a November 2006 VA examination and a December 2006 cardiovascular diagnostic test. The appellant was diagnosed with hypertension; no other heart disorder was identified. The current disability element is satisfied. The appellant testified before the undersigned that his blood pressure went up as a result of his period of active service from November 2001 to April 2002. He contends that the stress of service led to hypertension. The December 2006 rating decision discussed the appellant's service treatment records, noting a November 1996 entry in which the appellant stated that he was on daily blood pressure medication. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state, under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3). INACDUTRA includes service with the Air National Guard of any State (other than full- time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. There is no indication that the November 1996 hypertension or its treatment appeared during a period of ACDUTRA under 32 U.S.C. §§ 316, 502, 503, 504, or 505. Thus, service connection for a disease, such as hypertension, is not warranted for any period of INACDUTRA in 1996. The RO stated in the December 2006 rating decision that the hypertension was noted at entry to service as a result of the November 1996 record. The RO thus determined that the appellant's hypertension was a pre-existing condition. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b) (2009). A veteran who served during a period of war, as the veteran here, is presumed to be in sound condition when he entered into military service except for conditions noted on entrance medical examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability that the veteran later complains about. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations expressly provide that the term "noted" signifies "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b) (2008). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1).Where there is "clear and unmistakable" evidence that the injury or disease claimed pre-existed service and was not aggravated therein, the presumption does not attach. Id. The appellant appears to have entered active service in 2001 without an entrance examination. The appellant had been examined prior to 2001 during the course of his inactive service. In April 1998, he denied having hypertension or taking medications for hypertension. His blood pressure was 122/96 at that time. That was the most recent, complete examination of record prior to the November 2001 entry to active service. An isolated finding of elevated blood pressure (in April 1998) does not constitute evidence of hypertension at service entrance. The appellant denied having any current problems or taking medication in May 1999, May 2000, and June 2001. The records intervening November 1996 and November 2001 make no further reference to hypertension. The appellant is presumed sound at service entrance in 2001. The appellant has provided conflicting statements regarding his hypertension. The appellant's written submissions disagree with each other and with his service treatment records. The appellant's May 2006 claim states that he developed high blood pressure after being deployed to Operation Northern Watch. His June 2007 Notice of Disagreement recognized that he had mild hypertension prior to November 2001, but indicated that it had been controllable. He stated that his hypertension had become uncontrollable after service, with many changed medications in an attempt to bring the condition under control. His December 2007 Form 9 states that he agreed that he had hypertension prior to his last period of active duty service, but that it was controlled by medications at that time. The appellant's Notice of Disagreement and Form 9 contradict his original claim. For those statements to be true, his statements during his inactive duty periodic examinations and active service would have to be false. He denied taking prescription medication in 1998, 1999, 2000 and 2001, and specifically denied high blood pressure in April 1998. A December 2001 dental note indicates that he had blood pressure of 123/86. He completed a dental patient history in which he again denied any medications. A March 2002 questionnaire was completed by the appellant, in which he denied taking any medications. There is no notation of elevated blood pressure anywhere. During testimony before a Decision Review Officer in December 2008, the appellant reported that he had slight, controllable hypertension in June or July 2000 and that it stayed that way through his active duty service. He reported being told by a doctor that he had hypertension and he was placed on medication, which he was taking medication at the time he entered active service in November 2001. The appellant reported that he had been sent to Turkey and worked seven days a week, twelve hours a day. The appellant reported his duties as including reloading weapons onto aircraft. He reported that he was seen for a tooth infection and that his blood pressure was elevated at the time. He reported that he took his medications during his period of service. He reported that, following his return from service, he had noticed some sleep trouble and dizzy spells and during a physical later on that year his blood pressure was elevated. The appellant reported that his blood pressure had been persistently high since then. He referred to a visit at a VA hospital when his blood pressure was particularly high. The Board finds that the appellant was referring to his November 2006 VA examination. These statements generally agree with the appellant's statements in his Notice of Disagreement. During his testimony before the undersigned, the appellant indicated that he had first been told he had noticed he had slightly high blood pressure sometime around 2001, but that it was nothing drastic, and was controlled by medication at the time. He then testified that he was treated many times for high blood pressure during his November 2001 to April 2002 period of active service. He indicated that his blood pressure medication had no longer worked well. He later testified that this was not correct, that he had been on medication in 1998 or 1999, and that it had come back under control so that from 2000 to 2002 he was not on medication. He then testified that his blood pressure spiked back up after the deployment and now he required medications again. The appellant's testimony contradicts the statements he made previously in the course of this claim and in sworn testimony at the RO. The appellant's statements also contradict his service records, as mentioned above. The Board finds that the appellant's statements are simply not credible. The Board turns to the remaining evidence of record. The Board notes that the appellant's wife also testified, but her remarks concerned the current effects that the hypertension and medication have on the appellant. They do not concern the onset of the disability. The appellant's service treatment records contain one reference to hypertension prior to December 2003. The December 2003 record indicates that the appellant was on medication for hypertension but could not remember the name. To report this, the appellant would have to have returned to medication prior to December 2003, but it is not clear when that occurred. The appellant had evaluation of a right knee disorder in late 2002 and surgery early 2003 by the AP&S Bone and Joint Center. A November 2002 patient history was obtained. In the history, the appellant denied cardiovascular problems. Throughout his treatment, the appellant failed to report medication or hypertension. The Board finds that the appellant's hypertension was not present during service and is not related to service. The appellant is not credible in reporting his history. There is no other evidence to support a finding of inservice hypertension. There is no other evidence to support a finding that his present hypertension is related to service. The remaining evidence does not show hypertension until December 2003. The Board finds that the appellant's hypertension was not manifest in active service or related to his active service. Thus, service connection is not warranted on a direct basis. See Hickson, supra. The Board has also considered presumptive service connection. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 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. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The appellant's hypertension was not noted in his service records between November 1996 and December 2003. While the appellant had more than ninety days of service during his period of active service, that period ended in April 2002, given that the appellant has been inaccurate regarding his medical history, the Board looks to the medical evidence. The first post-service mention of hypertension in either his service treatment records or private treatment records is in December 2003. This is eight months after the end of the presumptive period. The appellant cannot benefit from this presumption. In sum, the Board finds that the appellant did not have hypertension during service, hypertension related to service, or manifestations to a compensable degree within one year of service. Service connection must be denied. As such, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs