Citation Nr: 1123554 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 08-27 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for hypertensive vascular disease, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge, seated at the RO, in August 2010. A transcript of this hearing has been associated with the claims file. In a December 2010 action, the Board remanded his appeal to the agency of original jurisdiction for further development. This issue has now been returned to the Board. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The evidence of record does not indicate that hypertensive vascular disease had its onset during service or within a year thereafter, or that hypertensive vascular disease is due to or aggravated by the Veteran's service-connected PTSD. CONCLUSION OF LAW Hypertensive vascular disease was not shown to have been incurred in or aggravated by active military service and may not be presumed to have been incurred or aggravated therein; hypertensive vascular disease has not been caused by or aggravated beyond its normal progression by the Veteran's service-connected PTSD. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). VA has made all reasonable efforts to assist the Veteran in the development of his claim, has notified him of the information and evidence necessary to substantiate the claim, and has fully disclosed VA's duties to assist him. In May 2007 and December 2010 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. These letters included notice regarding establishment of secondary service connection. Additionally, the May 2007 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the July 2007 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. Review of the claims file also indicates that in September 1998, the Veteran was denied Social Security disability benefits. A copy of this determination, but not the underlying medical evidence, is associated with the claims file. Generally, pertinent medical records must be obtained by VA from the Social Security Administration. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In the present case, however, the 1998 Social Security determination predated the Veteran's first diagnosis of hypertensive vascular disease in 2000, and was based on physical disabilities unrelated to hypertensive vascular disease. Thus, as any outstanding Social Security Administration records are not pertinent to the Veteran's pending claim, remand would only result in further delay in adjudication of the Veteran's claim without any useful benefit being afforded him. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Veteran has also been afforded a VA medical examination in January 2011 which addressed the issue on appeal. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. In August 2010, the Veteran was afforded the opportunity to testify before a Veterans Law Judge. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Veteran submitted additional written contentions directly to the Board in February 2011, without a signed waiver of agency of original jurisdiction (AOJ) review of this evidence. See 38 C.F.R. § 20.1304. Because this statement only amounts to a repetition of the Veteran's prior assertions, and not new evidence per se, remand for consideration of this statement by the AOJ is not required. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. The Veteran seeks service connection for hypertensive vascular disease, to include as secondary to his service-connected PTSD. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be awarded for certain disabilities, such as hypertension, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. As an initial matter, the Board must consider the possibility of direct service connection, whether or not his theory is raised by the Veteran. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). As the initial July 2007 rating decision explicitly considered entitlement to service connection on a direct basis, no prejudice to the Veteran results from the Board's consideration of this issue at this time. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Veteran's service treatment records are negative for any diagnosis of or treatment for hypertensive vascular disease or high blood pressure during military service. In the years immediately following service, the Veteran did not seek treatment for or receive a diagnosis of hypertensive vascular disease for many years thereafter. The first diagnosis of record of hypertensive vascular disease dates to 2000, more than 30 years after service separation. In summation, the competent evidence of record does not indicate and the Veteran does not claim onset of hypertensive vascular disease during military service, or to a compensable degree within a year thereafter. Thus, service connection for hypertensive vascular disease as having been incurred during active military service, or within a year thereafter, is not warranted. Rather, the Veteran's primary contention is that his current diagnosis of hypertensive vascular disease is the result of or aggravated by his service-connected PTSD. Service connection may also be awarded for any disability which is due to or the result of, or is otherwise aggravated by, a service-connected disability. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury, however, unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. 38 C.F.R. § 3.310. Upon receipt of the Veteran's claim, he was afforded a VA medical examination conducted by a VA physician in May 2007. His claims file was reviewed by the examiner in conjunction with the examination. He reported a history of initial diagnosis of hypertensive vascular disease approximately 10 years ago. Additionally, he experienced a myocardial infarction approximately 8 years ago; he was later told, however, that he did not experience a myocardial infarction. He was positive for hypercholesterolemia, prior tobacco use, and occasional alcohol use. He currently used medication to control his hypertension. On physical evaluation, essential hypertension was confirmed. Regarding the etiology of this disorder, the examiner stated that medical texts and journals "do not support the diagnosis of hypertension caused by PTSD." PTSD may, however, "cause episodic elevation of blood pressure." In the opinion of the examiner, further discussion on the etiology of the Veteran's hypertension would require "resorting to pure speculation." At his August 2010 personal hearing, the Veteran testified that his PTSD symptoms, including his mood swings, anxiety, and increased anger, caused or exacerbated his hypertension. Pursuant to the Board's December 2010 remand order, the Veteran was afforded another VA medical examination in January 2011. The Veteran's claims file was reviewed by the examiner, a VA physician, in conjunction with the examination. This same examiner had performed the May 2007 VA examination noted above. The Veteran reported chest pain and dizziness associated with his hypertensive vascular disease, but denied any history of congestive heart failure or myocardial infarction. A history of tobacco use was noted, although the Veteran denied any current usage. Other noted disorders included hyperlipidemia, for which he used medication. On physical examination, essential hypertension was confirmed. After examining the Veteran and reviewing the claims file, the examiner concluded the Veteran's hypertension was "not caused or aggravated by his service-connected PTSD." The examiner noted that numerous factors have been identified in the etiology of hypertension. These include salt intake, extensive alcohol intake, obesity, excessive sugar intake, and hyperlipidemia. While PTSD "may temporarily worsen symptoms" of hypertension, the examiner found "no medical literature that documents that PTSD causes or worsens hypertension." While some studies suggested a link between PTSD and hypertension, the examiner described these studies as "only speculation and without firm, documented evidence as to cause and effect." In support of his claim, the Veteran submitted directly to the Board a February 2011 statement in which he cited to several medical studies which purportedly showed an etiological nexus between PTSD and the development or aggravation of hypertension. He also cited to several prior Board decisions which awarded service connection for hypertension as secondary to PTSD. After considering the totality of the record, the Board finds preponderance of the evidence to be against the award of service connection for hypertension on a secondary basis, as due to or aggravated by PTSD. According to May 2007 and January 2011 VA medical examinations, the Veteran's hypertension was neither caused nor aggravated by his PTSD. These opinions were rendered by a competent medical expert after both physical examination of the Veteran and review of his medical history as found within the claims file, and a sound rationale discussing the bases for these opinions was provided. Pertinent medical literature was also reviewed by the examiner. The VA examiner, a physician, concluded that no causal link existed between the Veteran's PTSD and his hypertensive vascular disease, as PTSD neither caused nor aggravated his hypertensive vascular disease. In the absence of evidence to the contrary, service connection for hypertensive vascular disease as secondary to PTSD must be denied. The Veteran, a layperson, has himself asserted that his hypertensive vascular disease is either caused or aggravated by his PTSD. The Board recognizes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, cardiovascular disorders such as hypertensive vascular disease are complex disorders involving the largely unseen internal organs of the body, and which require specialized training for a determination as to diagnosis and causation; therefore, they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements as to the origin of his hypertensive vascular disease cannot be accepted as competent medical evidence. This is especially true in light of the contrary evidence provided by a VA physician. In his February 2011 statement, the Veteran provided citations to, but not the texts of, several medical studies which, by his account, suggest a causal nexus between PTSD and hypertension. Assuming arguendo that these studies suggest, as the Veteran alleges, such a nexus, the Board nevertheless does not find them probative to the pending claim. Medical article or treatise evidence can provide important support when combined with an opinion of a medical professional. See Mattern v. West, 12 Vet. App. 222, 228 (1999); Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with a doctor's statements was "adequate to meet the threshold test of plausibility"); Wallin v. West, 11 Vet. App. 509 (1998). An attempt, however, to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive." Sacks v. West, 11 Vet. App. 314, 317 (1998) (a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). The Board finds that the treatise and medical information referenced by the appellant only provides generic information regarding PTSD and hypertension, and is not specific to the Veteran's case. For example, it does not reflect any other risk factors for hypertension which may be present in the Veteran's case, such as hyperlipidemia and prior tobacco use. Therefore, the Board finds that this evidence is of little to no probative value, especially as compared to the recent VA medical examinations. Finally, the Veteran has pointed to prior Board decisions granting service connection for hypertension as secondary to PTSD. The Board notes, however, that Board decisions are unique to the facts and circumstances of each individual claim, and do not carry the weight of precedent. 38 C.F.R. § 20.1303. In conclusion, the preponderance of the evidence is against the award of service connection for hypertensive vascular disease, to include as secondary to PTSD. Hypertensive vascular disease has not been shown to have had its onset during active military service or within a year thereafter, or as due to or aggravated by the Veteran's service-connected PTSD. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to service connection for hypertensive vascular disease, to include as secondary to service-connected PTSD, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs