Citation Nr: 1226257 Decision Date: 07/30/12 Archive Date: 08/03/12 DOCKET NO. 08-01 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from May 1996 to October 1996, from December 1998 to November 2001, and from September 2004 to March 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2010 substantive appeal, the Veteran requested a hearing before the Board sitting in Washington, D.C. He withdrew the request in writing in August 2010. 38 C.F.R. § 20.702 (e) (2011). In January 2012, the Board remanded the claim for further development. A review of the Virtual VA paperless claims processing system shows additional documents pertinent to the present appeal that have been considered. The issue of service connection for a thyroid disorder was raised by the Veteran's representative in an October 2011 brief but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran experienced isolated episodes of elevated blood pressure during active duty from 1998 to 2001 with no diagnosis of a chronic disorder. Service and VA treatment records are silent for recurrent elevated blood pressure between 2001 and 2009 with the exception of an episode in April 2005 that was associated with a separate disorder. 2. The Veteran's hypertension first manifested in 2009 greater than one year after active service with no continuity of chronic symptoms since service and is not related to any aspect of service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In correspondence in June 2005 and July 2005, the RO provided notices that met the requirements except that the notices did not provide information on the criteria for assignment of a rating or effective date. However, the Board concludes that such error was harmless given that service connection for hypertension is being denied, and hence no rating or effective date will be assigned with respect to the claimed disorder. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. The RO received the Veteran's claims in May and June 2005 when the Veteran was still a member of an Army National Guard unit. The Veteran requested all service records from the National Personnel Records Center NPRC in May 2005. The same month, an NPRC representative responded that no records were held and that the Veteran should make further requests to his National Guard Adjutant General. The RO requested service records on several occasions from the National Guard. Some records of the Veteran's first six months of active duty in 1996 have been recovered. Not among these records is an enlistment physical examination. However, service treatment records from November 1998 to June 2007 have been obtained and are associated with the claims file. These records include a physical examination just prior to the time of entry on active duty in November 1998 and an examination in February 2006 after the last period of active duty. In January 2008, the Veteran submitted a package of service treatment records which he reported to be his complete file. The Board concludes that both VA and the Veteran have exercised reasonable efforts to obtain all available service treatment records and that any further efforts will be futile. VA has also obtained medical examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The Veteran served as a U.S. Army vehicle mechanic including combat service in the Southwest Asia Theater of Operations from September 2004 to February 2005. The Veteran contends that he experiences hypertension that first manifested in service with a continuity of symptoms since service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, 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). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases including hypertension). Service treatment records from November 1998 to October 2001 document twenty-one measurements of blood pressure. Nine measurements showed systolic blood pressure as 140 mmHg or greater, and one showed diastolic pressure of 91 mmHg. In two instances, measurements taken the same day or within a few days were both above and below these values. The outpatient records and an October 2001 discharge physical examination are silent for any diagnosis or treatment of hypertension. In April 2002, the Veteran sought treatment at a VA emergency room. The attending physician noted a blood pressure measurement of 156/82 mmHg. The physician further noted, "The Veteran is not known to have a history of hypertension, by his history in the past. I have discussed salt reduction with him, and increasing exercise." Service treatment records during the period of active duty in 2004-05 including a February 2005 demobilization medical history questionnaire are silent for any measurements of high blood pressure, diagnosis of hypertension, or prescribed medication. In April 2005, a VA physician's assistant (PA) noted the Veteran's reports of a history of high blood pressure measurements while on active duty but that he had not been prescribed medication. The PA measured blood pressure at the time of the examination as 165/77 mmHg. The Veteran failed to report for a compensation and pension examination in August 2005 that may have provided relevant evidence. In a February 2006 National Guard physical examination, the Veteran denied a history of high or low blood pressure. The examiner noted a blood pressure measurement of 122/82 mmHg and no vascular system abnormalities. In June 2006, the RO denied service connection for hypertension because there was no clinical diagnosis of the disease. In June 2007, a VA nurse practitioner (NP) noted that the claims file was not available for review. The Veteran reported he was told that he had high blood pressure and received weekly rechecks but the results were varied, and he was not prescribed medication. Service treatment records did show that the Veteran's blood pressure was measured eight times in a 15 day period in May 2000 with some but not all showing systolic pressure above 140 mmHg. The Veteran also reported that he was told his blood pressure was high by the VA examiner in April 2005 but again was not provided any treatment. The NP noted a review of the VA electronic records that showed high blood pressure measurements in 2002 and 2005 as discussed above. On examination, blood pressure was measured two or three times daily over a period of three days. Systolic pressure varied from 132 to 148 mmHg; diastolic pressure was consistently less than 90 mmHg. The NP noted the results of blood tests and a chest X-ray and determined that the Veteran did not currently meet the criteria for a diagnosis of hypertension. In a December 2007 statement of the case, the RO continued to deny service connection because there was no evidence of a clinical diagnosis of the disease. VA outpatient records through May 2009 continued to be silent for any diagnosis or treatment for hypertension. Occasional measurements of blood pressure were consistent with the variable measurements noted in earlier military and VA records. Additional electronic VA treatment records were added to the Virtual VA file for treatment starting in May 2009. Although a diagnosis of hypertension was added to an ongoing problem list in June 2009, the records do not contain an associated clinical examination and the Veteran was not prescribed medication. The Veteran was admitted as an inpatient to a VA Medical Center in November 2009 to investigate atypical chest pain. A cardiac evaluation was negative, but the Veteran was prescribed oral medication for elevated blood pressure during his hospitalization. He continued the use of medication for several months with good control. In May 2010, the Veteran requested an opinion from his primary care physician relevant to a relationship of his hypertension to service, but the physician declined to do so without a review of the service treatment records. The remainder of the outpatient records showed that the Veteran was advised to continue oral medication. In an October 2011 brief, the Veteran's representative contended that the VA standard for hypertension is either systolic blood pressure of 140 mmHg or diastolic pressure of 90 mmHg or greater. VA Compensation Service's Medical Electronic Performance Support System (Medical EPSS) contains the following definitions for hypertension: "Hypertension in persons over 18 years of age is defined by blood pressure readings of a diastolic average, taken on two separate occasions, as over 90 mm/Hg, or systolic average, at two or more visits, which is over 140 mm/Hg." Compensation Service's Medical Electronic Performance Support System (Medical EPSS), http://cptraining.vba.va.gov/C&P_Training/Job_Aids/Medical_EPSS.htm (last visited Jul. 25, 2012). This reference and 38 C.F.R. § 4.104, Diagnostic Code 7101 (2011) provide the criteria for rating hypertension as follows: "For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm [38 CFR §4.104 Schedule of ratings-cardiovascular]." In January 2012, the Board remanded the appeal to obtain current VA outpatient treatment records and an additional medical examination and opinion whether the Veteran currently had a clinical diagnosis of hypertension, and if so, whether it first manifested in service with a continuity of symptoms since service or was caused by any aspects of service. As current VA treatment records were obtained and associated with the electronic file and a VA examination and opinion were obtained, the Board concludes that there has been substantial compliance with the remand instructions. In late January 2012, a VA physician noted a review of the claims file and examined the Veteran. The physician's report was prepared seven days later after a review of the records of an intervening primary care appointment. The physician noted the Veteran's report of being told by clinicians in 2005 or 2006 that he had high blood pressure. He reported that he was advised to adopt lifestyle changes but was not prescribed medication until one year before this examination. The Veteran acknowledged that he was not compliant with the medication, and the physician noted that his primary care physician no longer prescribed medication at the most recent encounter in February 2012. The physician discussed the history in detail. The discussion is substantially consistent with the history provided above including the examinations and observations in 2002, 2005, and 2007 that showed no diagnosis of hypertension. The physician also noted the Veteran's denials of a history of high blood pressure in February 2005 and February 2006 after the most recent period of active duty. The physician noted that the isolated elevated measurement in 2005 was concurrent with a transient elevated thyroid measurement and that the elevated blood pressure was likely caused by acute thyroiditis. Blood pressure readings in VA records from 2005 to 2009 were predominantly less than 140 mmHg systolic and 90 mmHg diastolic. The physician noted the appearance in the records of a diagnosis of hypertension in June 2009 and the first prescribed medication in November 2009. The physician noted that after November 2011, one of three blood pressure measurements were greater than 140 mmHg systolic and two of three greater than 90 mmHg diastolic. The physician also noted that in a treatment encounter three days after her examination (records not yet added to the electronic file), the Veteran's primary care physician advised that no medication was necessary because the blood pressure was only mildly elevated and because the Veteran had lost weight. The physician acknowledged the VA Medical EPSS and rating criteria and concluded that the Veteran's symptoms strictly but barely met the criteria after November 2009. Regarding a continuity since service or a relationship to events in service, the physician noted that isolated episodes of high blood pressure measurements are insufficient to render a diagnosis of hypertension and that no treatment was provided prior to 2009. The physician again noted that the episode in 2005 was likely related to acute thryoiditis and resolved. As consistent high blood pressure and hypertension were not noted in service or prior to 2009, the physician concluded that the current hypertension was not related to his active service. There is no other contrary opinion of record. The Board concludes that this examination was adequate as the examiner reviewed and discussed the entire history, examined the Veteran, and provided an opinion with explanations responsive to the Board's questions. In a July 2012 brief, the Veteran's representative contended that there were instances of high blood pressure in active service and within one month of active service in 2005 and because no other reason for the current disorder has been established, service connection is warranted. The representative did not suggest any aspects of service as a cause for the disease, but only that the isolated instances of high blood pressure should be recognized as the in-service onset of the disease. The Board concludes that service connection for hypertension is not warranted because the disorder was first diagnosed by clinicians using established medical criteria not earlier than 2009, greater than one year after the last period of active service, and with no continuity of symptoms consistent with a clinical diagnosis after service prior to 2009. The Veteran has contended that the occasions of high blood pressure readings during active duty are sufficient to warrant a diagnosis of hypertension. Lay 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 the symptoms at the time support at later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). In this case, the Veteran is competent to report the blood pressure measurements as they were obtained and reported to him. He does not contend that any measurements were obtained that are not in the service and post service records. Symptoms, not treatment are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Blood pressure measurements are test results. Standing alone, the results are not a disability eligible for service connection. A determination that test results are sufficient to diagnose a chronic disorder requires medical expertise, and the Veteran is not competent to diagnose hypertension. The treatment records showed that clinicians were aware of isolated high blood pressure measurements with extended periods of lower blood pressure but did not render a diagnosis until 2009 because the symptoms did not meet the established medical criteria. Notably, in a February 2006 National Guard physical examination, the Veteran denied a history of high or low blood pressure and an examiner noted blood pressure as 122/82 mmHg with no vascular system abnormalities. There are no contemporary diagnoses by a medical professional until 2009, and there were competent medical assessments of the symptoms prior to 2009. Therefore, the Veteran's lay evidence of the onset of hypertension based on isolated measurements prior to 2009 is not competent evidence. Moreover, there is credible evidence in the records that the high blood pressure measurements were not continuous, but rather were episodic, not evident during the 2005-06 active service, related to another disorder in April 2005, and not evident and a history denied in February 2006. Further, no high blood pressure measurements were evident from 2006 to 2009, and there is no lay or medical evidence that these measurements imposed any level of functional disability or limitation of the Veteran's ability to perform his military duties or civilian occupation. Finally, the Veteran's attending clinicians advised him on several occasions that control by lifestyle choices including diet, exercise, and weight loss were adequate to prevent the development of a chronic disorder. The Board places greatest probative weight on the comprehensive evaluation by the VA physician in January-February 2012 who reviewed and explained the entire history including the reason for the high measurement one month after active service in 2005. The physician provided a clear opinion consistent with the VA medical definitions that isolated episodes of high blood pressure do not constitute a chronic hypertensive disorder and did not do so in this Veteran's case. The Board is not qualified and need not develop evidence or speculate on the possible causes of Veteran's hypertension. In this case, there is credible and probative evidence that the Veteran's current hypertension first manifested as a chronic disorder greater than one year after active service. There is also a competent credible and probative opinion that the current disorder is not related to service because it did not manifest as a chronic disorder for many years after service. Because the Veteran served in Southwest Asia, the Board considered whether service connection is warranted for a qualifying chronic disability under the provisions of 38 C.F.R. § 3.317 (2011). The Veteran's hypertension is a diagnosed illness. Although the credible medical evidence does not contain opinions on the etiology of this disease in the Veteran's case, it is not a medically unexplained chronic multisystem illness. Clinicians have attributed the disease to diet, weight, and lack of exercise. There is no credible lay or medical evidence suggesting an association with any aspect of Southwest Asia service. The Board concludes that the provisions of 38 C.F.R. § 3.317 are not applicable in this case. As the preponderance of the credible and probative evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs