Citation Nr: 1018089 Decision Date: 05/14/10 Archive Date: 05/26/10 DOCKET NO. 07-19 531 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to May 1991, from October 2002 to November 2002, from March 2003 to September 2003, and from April 2005 to May 2005; and had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Tennessee Air National Guard, including a period of ACDUTRA from December 1971 to April 1972. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision that, in pertinent part, denied service connection for hypertension. The Veteran timely appealed. In October 2008 and in September 2009, the Board remanded the matter for additional development. FINDING OF FACT Hypertension did not have its onset or increase in severity during active service and is not otherwise related to active duty; hypertension was not first manifested to a compensable degree within one year of a period of active service. CONCLUSION OF LAW Hypertension was not incurred or aggravated in service, nor may hypertension be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through June 2006 and December 2007 letters, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claim. VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the December 2007 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations and opinion in connection with the claim on appeal, reports of which are of record. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Where the Veteran served continuously for ninety (90) or more days during a period of war, and if a disabling hypertension became manifest to a degree of 10 percent or more within one year from the date of the Veteran's 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, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). 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. 38 U.S.C.A. § 1111. The Board notes that the presumptions of soundness and aggravation do not apply to periods of ACDUTRA or INACDUTRA. Service treatment records of the Veteran's first entry into active duty in December 1990 note a blood pressure reading of 130/80 (sitting). Examination at the time of the Veteran's initial separation from active duty in May 1991 is not of record. Hypertension was not found in service. There is no evidence of hypertension within the first post- service year, and no basis to presume its onset in service. Records reflect that the Veteran began taking medications for cholesterol, and one of the side effects was elevated blood pressure beginning many years post-service in January 2002. Hypertension was first assessed in September 2002, and treated by diet and exercise. Then the Veteran was ordered to report for active duty from October 2002 to November 2002, a period less than 90 days; and from March 2003 to September 2003. Records show assessments of hypertension in January 2004 and in March 2004, treated by diet and exercise. Subsequently the Veteran served on active duty for a period less than 90 days, from April 2005 to May 2005. Records show assessments of hypertension in November 2005, January 2006, and in February 2006. In February 2006, the Veteran's treating physician, James E. Gleaves, M.D., reported that the Veteran's medical problems have accelerated since his deployment in 1992, and even further spiked after deployment in 2003; and that any future deployments would further aggravate the Veteran's hypertension. In March 2006, Dr. Gleaves reported that the Veteran was suffering from anxiety due to his job, which affected his hypertension by increasing it. In May 2006, the Veteran was medically disqualified from National Guard service. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2008). The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. See Hunt v. Derwinski, 1 Vet. App. 292 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b); see also VAOPGCPREC 3-03 (July 16, 2003). VA defines hypertension as existing when systolic readings are consistently 160 or more, or diastolic readings are predominantly 90 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2009). Disabling hypertension to a degree of 10 percent exists where the disability is manifested by diastolic readings predominantly 100 or more, or systolic readings predominantly 160 or more, or there is a history of diastolic readings of 100 or more and continuous medication is necessary for control of the hypertension. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2009). During a December 2008 VA examination, the Veteran reported that he was started on one medication for hypertension for several months; and that his blood pressure normalized after starting CPAP use for obstructive sleep apnea in February 2006. He has been off blood pressure medication for approximately 8-to-9 months. The diagnosis was essential hypertension, noted in past history. The examiner noted that the Veteran currently received no treatment for hypertension. It was concluded that it was not likely caused or the result of military service. Records show a blood pressure reading of 140/90 in October 2009. The Veteran's medication regimen was adjusted to improve blood pressure control. In a December 2009 addendum report, the same VA examiner who conducted the December 2008 examination, had reviewed the Veteran's claims file, all blood pressure readings, and statements by Dr Gleaves; and opined that a permanent increase in hypertension was not caused by or a result of military service. The examiner noted that the Veteran's hypertension was controlled on diet alone, without medications. In essence, the December 2008 examiner concluded that the Veteran's hypertension did not owe its etiology to service; and that there was no permanent worsening of the Veteran's hypertension in service. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The December 2008 examiner reviewed the entire claims file in December 2009 and cited to specific evidence in the claims folder to support the opinion. The VA examiner specifically noted that medical records infrequently documented the Veteran's blood pressure; and noted the severity of the Veteran's obstructive sleep apnea. The VA opinion appears to be factually accurate, and contains sound reasoning. While Dr. Gleaves has indicated that the Veteran's medical problems have accelerated since his deployment in 1992, the evidence of record does not reflect an assessment of hypertension until nearly a decade later in 2002. There is no showing of a permanent worsening of the Veteran's hypertension during any period of active service. In fact, on VA examination in December 2008, the Veteran was not taking medication for hypertension and recorded blood pressure readings do not reflect a compensable level of disability. The absence of compensably disabling hypertension in 2008 further supports the conclusion that hypertension did not undergo a permanent increase in its severity during any period of active duty. Dr. Gleaves' does not point to any evidence reflecting a measurable increase in the severity of hypertension during a period of service and his opinion is of less probative value on the question of aggravation. In essence, the Veteran's hypertension had its onset post- service, and has primarily been controlled by diet and exercise. This evidence is consistent with the medical evidence of record and with the December 2008 examiner's opinion. Accordingly, the Board finds the December 2008 examiner's opinion to be probative on the question of onset or aggravation of the Veteran's hypertension. Also in February 2006, Dr. Gleaves opined that it may be the Veteran's hypertension that has developed is directly related to his obstructive sleep apnea. Statements from other National Guard members in the claims file reflect that the Veteran had problems sleeping while on deployment; and that he had disrupted breathing, shortness of breath, and excessive snoring. In December 2008, a VA examiner opined that the Veteran's hypertension was less likely as not (less than 50/50 probability) caused by or a result of military service and/or obstructive sleep apnea. The examiner noted that the Veteran's risk factors for hypertension included family history, male gender, high cholesterol, obesity, and obstructive sleep apnea; and that Dr. Gleaves indicated that the Veteran's hypertension was aggravated by stress. The examiner noted that hypertension can be aggravated by untreated obstructive sleep apnea, but that the Veteran used a CPAP nightly; and that he currently did not take any blood pressure medications. Given the findings that the Veteran's hypertension is controlled by diet and exercise, and that his obstructive sleep apnea is undergoing treatment, the overall evidence does not reflect any increase in severity of the Veteran's hypertension during a period of active service. Moreover, in a September 2009 decision, the Board denied service connection for obstructive sleep apnea. Hence, a clear preponderance of the evidence is against a finding that any current hypertension is proximately due to or the result of a service-connected disability. Finally, the Veteran contends that his hypertension started in 1990. This is not consistent with his service treatment records for his initial period of active duty from December 1990 to May 1991, as noted above. There is no report of pertinent disability until more than a decade after his initial period of active duty. The Veteran's statements regarding the continuity of pertinent symptomatology since then are of questionable credibility, and not consistent with the overall record which does not support the claim. While the Board finds the Veteran's statements regarding sleeping problems and anxiety in service to be credible, competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). Hence, the evidence clearly weighs against findings that the Veteran's hypertension had its onset or increase in severity during service. ORDER Service connection for hypertension is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs