Citation Nr: 1019507 Decision Date: 05/26/10 Archive Date: 06/09/10 DOCKET NO. 08-32 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to July 1969. He received the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York. In that decision, the RO denied entitlement to service connection for hypertension. In his October 2008 substantive appeal (VA Form 9) the Veteran requested a hearing before a Veterans Law Judge at the RO (Travel Board hearing). In March 2010, he withdrew his hearing request. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2009) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue of entitlement to a TDIU has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's hypertension is the result of his service- connected PTSD. CONCLUSION OF LAW The criteria for service connection for hypertension are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). As the Board is granting the claim for service connection for hypertension, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service- connected disability and that compensation can be paid for any additional impairment resulting from the service- connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation. 38 C.F.R. § 3.310(b). Because service connection for hypertension is not being granted on the basis of aggravation, it is not necessary to determine which version of the regulation is applicable. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's VA treatment records reveal that he has been diagnosed as having hypertension. For example, a May 2008 VA examination report indicated a diagnosis of essential hypertension. As for the etiology of the hypertension, a November 2007 letter from a VA physician includes an opinion that the Veteran's hypertension was likely ("as likely as not") related to his service-connected PTSD. This opinion was based on a review of scientific medical literature which revealed that there was a strong relationship between PTSD and the cardiovascular system. PTSD was known to affect neurotransmitters related to autonomic nervous system function and had been shown to produce a sustained blood pressure increase after an acute stressor. Although the evidence was strongest for PTSD directly affecting resting heart rate, stroke, and coronary artery disease, elevations of blood pressure had also been shown to be affected by PTSD. The May 2008 VA examination report includes an opinion that the question of whether the Veteran's PTSD aggravated his hypertension could not be resolved "without resorting to speculation". This report constitutes non-evidence and is of little probative weight. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The physician who conducted the May 2008 VA examination report did not include an opinion as to whether the hypertension was caused by PTSD. The VA physician who provided the November 2007 opinion explained the reasons for his opinion and they are consistent with the evidence of record. Therefore, his opinion is entitled to substantial probative weight. Nieves, 22 Vet. App. at 304. As the weight of the evidence is in favor of a conclusion that a link exists between the Veteran's hypertension and his service-connected PTSD and resolving reasonable doubt in his favor, the Board concludes that the criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.310. ORDER Entitlement to service connection for hypertension is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs