Citation Nr: 1032701 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 99-06 738A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a psychiatric disorder, secondary to hypertension. 3. Entitlement to service connection for heart disease, secondary to hypertension. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and the Veteran's wife ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from December 1977 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on October 12, 2006, which vacated a June 2005 Board decision and remanded the case for additional development. The issue initially arose from rating decisions in January 1997 and January 2004 by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). A personal hearing at the RO was held in March 1998. In a March 2007 decision, the Board remanded the claims in part so that additional records could be requested in conjunction with the October 2006 Joint Motion for Remand instructions. FINDINGS OF FACT 1. Hypertension was not manifested in service, but was initially demonstrated many years after service; a preponderance of the evidence is against a finding that the Veteran's current hypertension is related to his military service. 2. There is no persuasive medical evidence or opinion of a medical relationship, or nexus, between a psychiatric disorder and service; nor is there any persuasive medical evidence or opinion that a psychiatric disorder is proximately due to or aggravated by a service-connected disability. 3. Heart disease was first diagnosed many years after service, and there is no persuasive medical evidence or opinion of a medical relationship, or nexus, between heart disease and service; nor is there any persuasive medical evidence or opinion that heart disease is proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by military service, nor may service incurrence of hypertension be presumed. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). 2. A psychiatric disorder was not incurred in or aggravated by active service and is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.310 (2009). 3. Heart disease was not incurred in or aggravated by active service, nor may service incurrence be presumed, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided notice to the Veteran in an April 2007 letter that explained what information and evidence was needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the April 2007 letter, and opportunity for the Veteran to respond, the March 2010 supplemental statement of the case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Additionally, the Veteran was afforded a VA examination for hypertension in November 1996 that was fully adequate for the purposes of rendering this decision. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of his claimed psychiatric disorder or heart disability. However, VA need not conduct an examination with respect to the claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service- connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case, as there is no evidence that any psychiatric disorder or heart disability manifested in service or was otherwise related to service. Thus remand for VA examinations is not necessary. The Board also notes that complete service treatment records from the Veteran's Reserve service are not associated with the claims file. The claims file includes documentation that the RO took several steps to attempt to obtain these records, including requesting the records from the U.S. Army Hospital Facility, Fort Brook in San Juan, Puerto Rico (A/K/A Rodriguez Army Health Clinic, Fort Buchanan, Puerto Rico) and the Puerto Rican National Guard, Camp Santiago Training Site Medical Section in Salinas, Puerto Rico. In July 2007, the Medical Record Assistant of the Puerto Rican National Guard indicated that he did not have the Veteran's service treatment records. In February 2010, the RO made a formal finding that the Veteran's service treatment records were unavailable after noting that all efforts to obtain the information had been exhausted and that further attempts would be futile. See 38 C.F.R. § 3.159(c)(2). A December 2007 letter informed the Veteran of the RO's inability to obtain the service treatment records. Under these circumstances, the Board finds that VA has fulfilled its duty to attempt to obtain the Veteran's Reserve records, and that no further action in this regard is required. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection can be granted for certain diseases, including hypertension and cardiovascular-renal disease, if manifest to a compensable degree within one year of separation from active service. Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Hypertension Factual Background and Analysis Service treatment records are negative for any complaints, treatment, abnormalities, or diagnosis referable to hypertension or any cardiovascular problems during service. The Veteran was seen on numerous occasions for various maladies during service, but was not shown to have any symptoms or findings indicative of a cardiovascular disorder or hypertension. Blood pressure readings during service were as follows: 118/88 (entrance exam November 1977), 110/82 (periodic exam April 1979), 110/70 (December 1978), 138/94 (March 1979), 116/80 (July 1979), 110/80 (September 1979), 116/76 (March 1980), 130/82 (April 1980), and 110/80 (August 1980). Chest x-ray studies in July 1979 and January 1980 were negative and showed no significant abnormalities. On a medical history in August 1980, the Veteran denied any problems with severe or frequent headaches, heart trouble, or high blood pressure. Private medical records show that the Veteran was treated for various maladies from 1994 to 1996. An ophthalmology clinical note in May 1994 showed a history of hypertension treated with medications. A walk-in clinic note in December 1994 showed a history of intermittent chest pain and pressure accompanied by a pounding sensation since an automobile accident in 1992. The Veteran reported a history of possible high blood pressure but denied any history of heart disease; he did note a family history of heart disease. When seen in March 1996, the Veteran reported that he was hypertensive since 1977 while in service. When seen in May 1996, he reported a 16 year history of hypertension and onset of chest pain for one day. He noted that his father, grandmother and grandfather died of heart disease, and that his mother had hypertension. The note indicated that the Veteran was started on Accupril three weeks earlier when he was diagnosed with hypertension. The Veteran underwent private hospitalization in May 1996, and during that time, cardiac catherization with rotoblation and angioplasty, an exercise stress test with thallium, and an echocardiogram were performed. The diagnoses included coronary artery disease and hypertension. During VA hypertension examination in November 1996, the Veteran reported a history of hypertension since service and coronary artery disease, status post angioplasty in May 1996. The diagnoses included coronary artery disease and hypertension. At a personal hearing at the RO in March 1998, the Veteran testified that he had a problem with hypertension in service, including at the time of discharge in 1980. He attempted to enlist in the State National Guard in Puerto Rico a few months later but was rejected because of high blood pressure. He was then referred to a private doctor, who was also in the National Guard and was prescribed medication which lowered his blood pressure and allowed him to enter the National Guard. The Veteran testified that he had problems with hypertension ever since then and was forced to resign from the National Guard because of hypertension. He also testified that he sought medical attention for heart problems during active service, but was told that his blood pressure was all right. At the hearing, the Veteran submitted a letter from M. J. F., M.D., to the effect that he evaluated the Veteran at Ft. Brooke, PR during the first week of March 1981, and that his examination revealed hypertensive cardiovascular disease. The Veteran was reevaluated at Camp Santiago Training Site in Salinas, Puerto Rico on March 14, 1981 and again showed hypertensive cardiovascular disease manifested by a blood pressure of 130/80 and pulse of 80/min. In April 1998, the RO requested that Dr. F. furnish copies of any medical records for treatment of the Veteran in March 1981. The RO also sent letters to the two Puerto Rico National Guard facilities identified in Dr. F.'s letter requesting any medical records pertaining to the Veteran. In January 1999, Dr. F. responded that he did not have any records in his possession and that his earlier statement was based on his memory and his personal records of his military service. The evidentiary record includes numerous medical records and a decision from the Social Security Administration showing that the Veteran was awarded disability benefits based primarily on organic brain disease in July 1999. The medical records also include private medical records noting a history of heroin abuse (December 1996), and alcohol abuse (November 1998). It was also noted that the Veteran had a personality change following a cerebrovascular accident (CVA) in 1997. The Veteran contends that his hypertension was present in service and that he was started on hypertensive medications only a couple of months after he was discharge from service in 1981, and has been using hypertensive medications ever since that time. He avers that he was denied acceptance into the National Guard three months after discharge from active service because of his hypertension. The medical evidence of record confirms that hypertension has been diagnosed. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The first medical evidence of such disability is more than 14 years after service, and there is no basis for applying the chronic disease presumptive provisions of 38 U.S.C.A. § 1112. Although the Veteran testified that he had problems with hypertension and sought medical attention during service, the service treatment records contradict that assertion. In fact, on a medical history report in August 1980, only four months prior to his discharge from service, the Veteran specifically denied any problems with high blood pressure or heart problems, or any commonly associated symptoms such as frequent or severe headaches. The Board also finds it significant that, despite supposedly being on medications for control of hypertension since shortly after discharge from service, the Veteran has been unable to provide any treatment records or even the name of a single doctor who treated him for any cardiovascular problems prior to 1994. The fact that the first medical evidence of a hypertension disability is more than 14 years after service is also strong evidence against a finding of any continuity of symptomatology and against his claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. The Board has accordingly considered the lay evidence offered by the Veteran in the form of his correspondence to VA in which he asserted his belief that his hypertension was related to service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). It is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). While the veteran is competent to testify as to the symptoms he has experienced, he is not competent to testify to the fact that what he experienced in service is the same condition that he is currently diagnosed with. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Given the Veteran's inconsistent testimony concerning treatment in service and his inability to provide any competent medical evidence showing that he had hypertension until many years after discharge from service, the Board finds his testimony is unreliable. The Board has considered the statement from Dr. F., but does not find his letter to be persuasive. His recollections of treatment of the Veteran in March 1981 were based essentially on a medical history as provided by the Veteran's wife. Dr. F. stated that he did not have any treatment records pertaining to the Veteran, and that he relied on his memory, his National Guard drill records which showed that he was at the two National Guard facilities in March 1981, a review of the Veteran's medical records, and a history provided by the Veteran's wife. He offered no explanation as to how, as the medical officer at a Combat Support Hospital, he could recall evaluating this Veteran for high blood pressure nearly 17 years later with such specificity. That is, he noted that the Veteran's blood pressure on March 14, 1981, was 130/80, a reading that he diagnosed as hypertensive cardiovascular disease. Notwithstanding the fact that such a reading would not satisfy the minimum criteria for a compensable evaluation for hypertensive vascular disease (see 38 C.F.R. § 4.104, Diagnostic Code 7101) for the presumption of service incurrence to attach, neither he nor the Veteran has provided VA with a copy of the 1981 medical report which purports to show hypertension. Since Dr. F. does not have any medical records, and the Veteran has not provided any treatment records prior to 1994, the Board can only conclude that his opinion was based entirely on a history as provided by the Veteran's wife and the fact that his records showed that the Veteran was on duty in March 1981. A bare conclusion, even when reached by a health care profession, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998); Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. The Board finds that the competent evidence of record, while showing a currently diagnosed disability of hypertension, does not demonstrate hypertension manifested to a compensable degree within one year of separation or related to service. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for hypertension. The benefit- of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). The benefit sought on appeal is accordingly denied. Psychiatric Disorder and Heart Disease Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a psychiatric disorder and heart disease is not warranted. While the Veteran has asserted that he has a psychiatric disorder and heart disease secondary to hypertension, the decision herein denies service connection for a hypertension. Hence, as a matter of law, the claims for service connection for a psychiatric disorder and heart disease as secondary to hypertension are without legal merit, and must be denied as a matter of law. See 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition, while records of VA and private treatment reflect diagnoses of and treatment for a psychiatric disorder and heart disease, there is simply no competent, probative, medical evidence or opinion even suggesting a relationship between any of these disorders and service and neither the Veteran nor his representative has identified, presented, or alluded to the existence of any such medical evidence or opinion. In short, there is no competent medical evidence to support the claim for service connection for a psychiatric disorder and heart disease on a direct basis. Additionally, the Board notes that there is no evidence that heart disease manifested itself to a compensable degree within one year of the Veteran's separation from military service. Rather, a walk-in clinic note in December 1994 showed a history of intermittent chest pain and pressure accompanied by a pounding sensation since an automobile accident in 1992. There is simply no medical evidence of heart disease during the first year following separation from service. Thus, service connection is not warranted for heart disease on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In short, there is no competent medical evidence to support the claims for service connection for a psychiatric disorder and heart disease. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a psychiatric disorder, to include as secondary to hypertension is denied. Entitlement to service connection for heart disease, to include as secondary to hypertension is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs