Citation Nr: 1237195 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-13 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to an undiagnosed illness and exposure to environmental hazards. 2. Entitlement to service connection for ulnar neuritis, left upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to May 1992, with a period of active duty for training from June 25, 1987 to September 10, 1987. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims of entitlement to service connection for hypertension, to include as due to an undiagnosed illness and ulnar neuritis, left upper extremity. FINDINGS OF FACT 1. The Veteran's hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, and hypertension did not manifest within one year of the Veteran's discharge from service. 2. The Veteran's ulnar neuropathy of the left arm is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by such service, and hypertension is not shown to be due to an undiagnosed illness or environmental hazards. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2012). 2. Ulnar neuropathy of the left arm was not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1101 , 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2005 and April 2006 letter, sent prior to the initial August 2006 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. The April 2006 letter also advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment and personnel records and VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process. Additionally, he was afforded VA examinations in July 2006 and in August 2010 in order to adjudicate his service connection claims. In this regard, the Board finds that both opinions, but especially and read alongside the August 2010 opinion, regarding the etiology of the Veteran's hypertension and ulnar neuropathy of the left arm was based on an interview with the Veteran, a review of the record, and a full examination. Moreover, the examiners offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the opinions proffered by the VA examiners, particularly the August 2010 opinion, are sufficient to decide the Veteran's claims. The Board notes that the Veteran's claim was remanded in May 2010 in order to afford him VA examinations with adequate rationale. As such directives have been substantially complied with, as discussed in the preceding paragraphs, no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. 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). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hypertension The Veteran contends that his hypertension had its onset in service as demonstrated by blood pressure readings that showed pre-hypertension and elevated blood pressure. He contends that his hypertension was possibly caused by environmental hazards or while stationed in the Persian Gulf, or is due to an undiagnosed illness. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. 38 C.F.R. § 4.104, Note (1) (2011). Service treatment records reflect that on February 1988 enlistment examination, the Veteran's blood pressure was 110/62. In February 1990, the Veteran had blood pressure of 122/86. In March 1989, when being treated for acute sinusitis, the Veteran had a blood pressure reading of 130/90 and 124/90. In February 1990, his blood pressure was 126/78. Also in February 1990, his blood pressure was 122/86. In October 1991, the Veteran's blood pressure was 149/80. It was noted that the Veteran was given information regarding blood pressure and cholesterol. In November 1991, when being treated for a neck injury, his blood pressure was 186/80. Also in November 1991, his blood pressure was 156/90. On April 1992 separation examination, his blood pressure 144/74 and 132/ 72. He reported on separation examination that from November through March 1992, he was treated for colds and sinusitis and had blood pressure that was a little high throughout that time. He stated that his blood pressure was now normal. On his September 2005 claim for service connection, the Veteran stated that his hypertension began in January 1995. In September 2006, the Veteran submitted a private medical record in support of his claim. The physician reviewed records from 1991 that showed several blood pressure readings, 149/89, 186/80, and 156/90. The physician felt that the Veteran did have hypertension at that time even though it was not marked in his record. On August 2010 VA examination, the Veteran reported having been on antihypertensive medications for 12 to 15 years. After physically examining the Veteran and reviewing the claims file, the examiner concluded that the Veteran's hypertension less likely than not caused or aggravated by his service. The examiner noted elevated blood pressure on four occasions while in service, in August 1991, twice in November 1991, and in May 1992. The examiner determined that the remainder of blood pressure readings were averaged in the 120/70s, noting that in June 1991, there was a blood pressure reading of 128/74. The examiner explained that there was no indication of 2 or more elevated blood pressure readings on at least three occasions to indicate a diagnosis of hypertension. That was true because the three elevated readings, 141/80, 186/80, and 156/90, were likely due to the neck injury the Veteran was experiencing at the time. That conclusion was supported by the fact that his blood pressure was 128/74 just prior to treatment for the neck. First, the Board has considered whether service connection is warranted for hypertension on a presumptive basis. However, the record fails to show that the Veteran manifested hypertension to a degree of 10 percent within the one year following his service discharge in 1992. Rather, the evidence, to include the Veteran's own statements, indicate that he was first diagnosed with hypertension in 1995. As such, presumptive service connection is not warranted for hypertension. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Next, the Board places great probative weight on the August 2010 VA examiner's opinion that it was less likely than not that the Veteran's hypertension had its onset in service or was related to his service. The Board finds that the opinion offered clear conclusions with supporting data, as well as reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). The Board finds that the August 2010 VA opinion is more probative than the September 2006 private nexus finding that the 1991 blood pressure readings were indicative of hypertension. In that regard, an evaluation of the probative value of medical evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds that the September 2006 opinion is less probative because there is no indication that the physician reviewed the Veteran's other service treatment records, including those showing lower blood pressure readings prior to the neck injury and on service separation. Such is significant because there is a noticeable change in blood pressure prior to and after the 1991 treatment, including the Veteran's own statements. In that regard, the August 2010 VA examiner reviewed all of the service treatment records and found that the blood pressure readings as a whole, including the many other readings other than the three mentioned by the private physician, did not demonstrate a pattern upon which to diagnose hypertension for VA purposes. Significantly, the 2006 private physician provided no rationale as to why the three 1991 readings, one of which was inaccurate in that it was 149/80 not 149/89, demonstrated a diagnosis of hypertension. Absent a rationale with medical principals, the opinion is much less probative. Thus, the Board finds that the competent, probative, and persuasive evidence of record weighs against a diagnosis of hypertension during service. With regard to whether the elevated readings in 1991 were indicative of the later onset of hypertension, the VA examiner concluded that those elevated ratings were most likely related to treatment for the Veteran's neck injury. Thus, they did not indicate the beginning of the Veteran's later hypertension. To that extent, the Veteran himself stated on his separation examination that he had had elevated blood pressure in 1992 but that his blood pressure was now normal. The Board finds that the Veteran's statement, made at the time of his service separation and not when applying for VA benefits, tends to support a finding that on service separation he had knowledge that his blood pressure was normal. In fact, on service separation, objective testing showed that his blood pressure had decreased since the 1991 readings. Moreover, he stated on his September 2005 claim for service connection that his hypertension was diagnosed in 1995, three years following separation from service. Accordingly, the Board finds that the competent, probative, and persuasive evidence is against a finding that his hypertension had its onset in service. With regard to the Veteran's claim that his hypertension was caused by environmental toxins while in service or to stress while in service, the Board finds no evidence to support those contentions. The service treatment records do not demonstrate adverse environmental factors or stress that affected his health chronically, and the post-service evidence, to include lay and medical evidence, do not support that theory. The August 2010 VA examiner reviewed the service treatment records and concluded that the elevated blood pressure readings in service were most likely related to treatment for a neck condition. Therefore, the VA examiner did not attribute those readings to any other cause. Thus, there is no medical evidence to support the Veteran's theory, and the Veteran has not provided any specifics as to how his hypertension was caused by environmental toxins or stress. Lastly, the Board finds that the Veteran's hypertension was not due to an undiagnosed illness. Specifically, the Veteran's hypertension has been diagnosed and has not been attributed to an undiagnosed illness. There is no indication that his hypertension is due to an undiagnosed illness and no undiagnosed illness has been service-connected. See 38 C.F.R. § 3.317. The Board notes that Veteran and his representative's argument that the VA examiner did not use the correct standard of review and should have addressed the issue of pre-hypertension in service. However, the Board finds that the examiner did address whether the Veteran has pre-hypertension in service, but instead found that the elevated readings were not indicative of a later onset of hypertension. Rather, they were related to medical treatment being sought at the time. Ulnar Neuropathy, Left Arm (Left Arm Disability) The Veteran contends that while in service, he complained of numbness in his left hand a number of times but felt that the medics were not interested in his complaints. He contends that his ulnar nerve disability was caused by low crawling and other training. Service treatment records reflect that in June 1991, the Veteran reported having numbness in his left hand. There was no history of numbness. The numbness was at the top of the left hand but was not in the arm. There was no tingling. There was good strength and circulation. The diagnosis was localized subjective hypoesthesia. In August 1991, the Veteran was treated for a pulled muscle in his neck. There was no indication of any neurological component in the upper extremities. On April 1992 separation examination, the Veteran denied having symptoms of neuritis. On his September 2005 claim for service connection, the Veteran stated that his symptoms of left arm numbness and tingling began in January 2001. Private treatment records reflect that a May 2004 nerve conduction study of the left arm was normal. In June 2004, physical examination resulted in a diagnosis of dysesthesias ulnar nerve distribution left upper extremity, probable mild cubital tunnel syndrome. On July 2006 VA examination, the Veteran reported having had intermittent symptoms of the left upper extremity that became constant in 2004. He had a tingling and numbness sensation at all times, as well as weakness. The tingling would radiate from his cervical spine to his arm and fourth and fifth fingers. Physical examination resulted in a diagnosis of ulnar nerve neuritis. After reviewing the claims file, the examiner concluded that the Veteran's left upper extremity disability was not related to his military service. The examiner explained that the Veteran had ulnar neuritis, not radiculopathy, and that condition was not related to his service. Private treatment records reflect that in September 2006, the Veteran reported pain in the neck, left arm, and left shoulder for more than 10 years. He had done a lot of repetitive lifting and had had a fall while in service. Since then he had had chronic neck pain as well as left arm pain and ulnar distribution. He complained of numbness and tingling in the medial aspect of the left forearm and also covering the fourth and fifth fingers in the ulnar distribution. The assessment was possible ulnar neuritis versus cervical radiculopathy. On August 2010 VA examination, the Veteran reported an uncertain date of onset of symptoms but felt it was in 1990. After completing physical examination and a review of the claims file, the examiner concluded that it was less likely than not that the Veteran's left arm disability was caused or aggravated by his service. The examiner explained that the 1991 complaints of left hand numbness, and accompanying physical examination, was not consistent with ulnar nerve distribution which should be the fifth digit and ulnar aspect of the fourth. Moreover, that complaint was not shown to be chronic as it did not reoccur in the service records or appear again in the medical records until the early 2000s. The examiner explained that based upon the various diagnosis and studies taken to evaluate the left arm disability, the Veteran suffered from a neuritis of the left ulnar nerve with possibly cubital tunnel syndrome as opposed to radiculopathy. His symptoms were not compatible with radiculopathy and the MRI findings did not show that disease process. In this case, the Board places the greatest probative weight on the August 2010 VA examiner's opinion that the Veteran's ulnar neuropathy was not caused or aggravated by his service. For one, the examiner reviewed the claims file, including the service treatment records and post-service treatment records, and provided a thorough rationale. See Stefl, supra. The examiner found it to be clear that the current ulnar neuropathy presented itself in a pattern that did not match the symptoms reported in service. Thus, there was no medical relationship between the reported in-service symptoms and the current disorder. Moreover, there was only one indication of symptoms in service which did not demonstrate a chronic disability. The Board takes into account the Veteran's statements to his private physician that he had had left arm symptoms for more than 10 years, beginning in 1996. However, that was more than 3 years following service discharge. The Board also takes into account the Veteran's statements that he did have left arm symptoms more than once in service. However, even if that is the case, there is no indication that those symptoms were related to his current ulnar neuropathy. Rather, the probative medical opinion finds that the in-service symptoms were of a different nature than the current disability. III. Conclusion The Board notes that the Veteran has contended on his own behalf that his current hypertension and left arm disability are related to his military service, or that first symptoms of his hypertension and left arm disability began in service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's hypertension and left arm disability and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Here, while the Veteran is competent to describe his in-service and post-service blood pressure readings and his date of diagnosis of hypertension, and his in-service symptoms of left arm numbness and tingling and his post-service diagnosis of ulnar neuropathy, the Board accords his statements regarding the etiology of his hypertension and left arm disability little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). The Veteran has offered only conclusory statements regarding the onset and pathology of his hypertension and left arm disability. In contrast, the August 2010 VA examiner took into consideration all the relevant facts in providing an opinion, to include the Veteran's blood pressure readings and neurological symptoms in service as well as the current nature of his hypertension and left arm disability. Therefore, the Board accords greater probative weight to the August 2010 VA examiner's opinion when finding that service connection for hypertension and left arm disability is not warranted. The Board also finds the Veteran's statements in support of his claims to lack credibility because the Veteran is inconsistent and his claims are unsupported by the medical evidence. He first claimed that his hypertension and left arm disability began in 1995 and 2001, respectively, but then stated that both conditions began in service. Also on service separation, he specifically stated that his blood pressure had returned to normal and he denied symptoms of neuritis. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for hypertension and left arm disability. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for hypertension is denied. Service connection for ulnar neuropathy, left arm, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs