Citation Nr: 1229531 Decision Date: 08/27/12 Archive Date: 09/05/12 DOCKET NO. 10-36 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for residuals of a stroke, to include as secondary to hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1953 to December 1955. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in part, denied the Veteran's claims of entitlement to service connection for hypertension and residuals of a stroke. In August 2011, the Board remanded this matter for further development, which has been completed and the case has been returned to the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that hypertension is related to service. 2. The preponderance of the evidence is against a finding that residuals of a stroke are related to service, or a relationship exists between residuals of a stroke and a service-connected disability. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). 2. Residuals of a stroke were not incurred in or aggravated by service, or proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter in August 2011. Specifically, the Board instructed the RO/Appeals Management Center (AMC) to obtain all outstanding VA and private treatment records, and to readjudicate the claims. Subsequently, on remand, all outstanding VA treatment records were associated with the claims folder. Additionally, in an August 2011 letter, the RO/AMC requested that the Veteran identify private treatment records and enclosed a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs. To date, the Veteran has not returned the form or otherwise identified outstanding private treatment records. In a June 2012 supplemental statement of the case, the AMC readjudicated the claims. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in March 2008, November 2008, and June 2009, prior to the September 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2011). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. Those letters also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2011). All available evidence pertaining to the Veteran's claims has been obtained. The record reflects that the RO requested the Veteran's service treatment records from the National Personnel Records Center (NPRC). In August 2009, NPRC advised VA that the Veteran's service treatment records had been destroyed in a fire in 1973. In a case in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). The Board observes that in the November 2008 letter the Veteran was notified of the unavailability of his service treatment records and was afforded an opportunity to supplement the record with additional evidence. Therefore, the Board finds that additional efforts to obtain these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining such records. In addition, neither the Veteran nor his representative has identified any outstanding pertinent evidence that could be obtained to substantiate his claims. As noted above, the Board remanded the claims in August 2011 to provide the Veteran an opportunity to identify outstanding records. Subsequently, he was sent an August 2011 letter with an enclosed a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs. To date, he has not returned the letter. The United States Court of Appeals for Veterans Claims (Court) has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 92 (1991). The Veteran has not been afforded VA medical examinations in connection with his claims. However, no such examinations are necessary. As will be explained in detail below, although service treatment records are not available, there is no indication of either of the claimed disabilities in service or until many years after service discharge . Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial 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; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The record is missing critical evidence an event, injury, or disease occurred in service, McLendon element (2). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2011). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined the option of a personal hearing. Thus, the duties to notify and assist have been met. Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain chronic diseases, including hypertension, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran currently has hypertension and residuals of a stroke. However, although service treatment records are unavailable there is no indication that that either of these disabilities were present in service. Additionally, hypertension did not manifest within a year of service discharge. Consideration on a presumptive basis for hypertension is thus not warranted. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The first indication in the record of hypertension was not until 1999 and the stroke was in December 1993, which are both nearly 40 years after service discharge. In view of the lengthy periods without treatment, there is no evidence of continuity of symptomatology and this weighs against the claims. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, although the Veteran's service treatment records are unavailable, the fact that the first indication of either claimed disabilities is not until nearly four decades after service weighs against a finding that such was present in service. Due to the absence of objective evidence of the claimed disabilities for several decades after service, the Board finds that a VA opinion is not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as there is no competent, probative evidence establishing a nexus between military service and the Veteran's current hypertension and residuals of a stroke, service connection is not warranted. The Board notes that the Veteran asserts that his residuals of a stroke are secondary to his hypertension. In this regard, the Board notes that service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). However, because service connection for hypertension is being denied, it is impossible for the Veteran to get service-connected for residuals of a stroke on a secondary basis to hypertension (or any other service-connected disability as he is not service-connected for any disability). The Veteran and his representative have been accorded ample opportunity to present competent evidence in support of the claims. They have failed to do so. See 38 U.S.C.A. § 5107(a). As noted above, the Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 92 (1991). The Board has considered the Veteran's assertions as to the etiologies of his hypertension and residuals of a stroke. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, assertions as to the etiologies of the Veteran's hypertension and stroke are unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his disabilities. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the lays statements in this case are not competent evidence. Additionally, the Board notes the Veteran's assertions that he was told by a doctor at service discharge that his blood pressure was high, that doctor considered keeping in service, and that he had been on medication ever since that time. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that "although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board finds that the Veteran's statements as to onset of his hypertension are not credible given the lack of documented evidence for over 40 years. Simply put, the Board does not find the Veteran's assertions that his hypertension originated in service and has been on medication since service to be credible. In sum, the evidence shows that the Veteran developed hypertension and had a stroke many years after service and there is no competent link between the Veteran's service and current disabilities, and/or a service-connected disability. As the preponderance of the evidence is against the claims for service connection, the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for residuals of a stroke, to include as secondary to hypertension, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs