Citation Nr: 1237214 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 04-25 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, to include service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION Veteran had active service from June 1968 to June 1970, including service in Vietnam. Among his awards and decorations, the Veteran was awarded a Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2004, the Veteran testified at a personal hearing before the RO. The claim was Remanded by the Board in August 2007 and in August 2010. FINDING OF FACT The evidence establishes that hypertension was not manifested in service or within a presumptive period and that the Veteran's hypertension is not secondary to or etiologically related to any incident of his service, to include exposure to herbicides, or secondary to or aggravated by his service-connected PTSD or service-connected coronary artery disease (CAD) or other service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension, to include secondary to or aggravated by service-connected PTSD or CAD, are not met, nor may service connection be presumed. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to service connection for hypertension. Before addressing the claim on the merits, the Board will address whether VA's duties to notify and assist claimants for VA benefits have been met. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to notify Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the RO issued a December 2002 letter that advised the Veteran of the criteria generally for establishing service connection. After the RO issued this letter, the Veteran testified regarding his belief that hypertensions was secondary to or aggravated by service-connected PTSD. Following the Board's 2007 Remand, the Appeals Management Center (AMC) issued a September 2007 letter which addressed the criteria for service connection, secondary service connection, and service connection based on aggravation, and also discussed the law governing determination of the degree of disability and the effective date of a grant of service connection, if service connection were to be granted. These communications advised the Veteran of all information for which notice is required under the VCAA. Dingess, supra. The Board acknowledges that complete notice regarding the VCAA was not furnished to the Veteran initially. However, the Veteran, who was represented, testified about secondary service connection and aggravation of hypertension by his service-connected disabilities, and the hearing examiner discussed the additional evidence required to establish the claim. To the extent that there was any defect in the timing or content of any notice to the Veteran, the Veteran has not raised any claim that he was prejudiced by any such defect. There is no presumption that any timing or content notice resulted in prejudice to the Veteran. See Shinseki v. Sanders, 129 S.Ct. 1696, 1706 (2009). If there was any defect in the timing or notice, the Veteran's testimony, the arguments submitted by the Veteran's representative, and the development of the claim after the Board's Remand and the additional notice by the AMC cured such defect. B. Duty to assist VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims file. The Veteran does not contend that there are any additional service treatment records. Private clinical records, VA clinical records, and voluminous records from the Social Security Administration (SSA) have been associated with the claims files. In the 2007 Remand, the Board directed that the Veteran be afforded VA examination. The Veteran underwent VA examination in April 2009 and his claim was reviewed again in August 2009. In May 2012, the Board requested a medical expert opinion from the Veterans Health Administration (VHA) for purposes of addressing medical questions for an equitable disposition of the appeal. See 38 C.F.R. § 20.901 (2012). The Veteran was notified that the opinion had been requested. This opinion was obtained in July 2012 and has been associated with the claims file. Pursuant to 38 C.F.R. § 20.903, the appellant was sent a notice letter following the Board's receipt of the July 2012 VHA opinion. The notice letter informed the appellant that he had 60 days to submit any additional evidence or argument. The notice letter was accompanied by a response form which allowed the appellant to choose whether to have the case remanded to the Agency of Original Jurisdiction (AOJ) for initial consideration of any new evidence submitted. The Veteran did not respond. More than 60 days has elapsed since the notice was sent. Appellate review may proceed. The Veteran has been afforded the opportunity to identify additional relevant post-service clinical records. The Veteran has not identified additional records. Under the circumstances, VA has met the duties to the Veteran. No further notice or assistance to the appellant is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claim for service connection Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. In addition, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may be awarded for a "chronic" condition when a disease defined by statute or regulation as a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition. There is a presumption applicable for arthritis and for hypertension. In order for a claim to be granted, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 18 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). A Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible"). In each case, the Board must determine whether the claimed disorder is the type of injury or disease for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record, including evidence such as any in-service record documenting the injury or disease. Facts At the time of March 1968 examination for entrance into service, the Veteran's blood pressure was recorded as 138/88. No diagnosis of hypertension was assigned during the Veteran's service; the service treatment records include no notations regarding blood pressure. In May 1970, at the time of separation examination, the Veteran's blood pressure was recorded as 132/80. The Veteran has reported that he was diagnosed as having hypertension in 1976. No treatment records prior to August 1985 have been obtained. The August 1985 treatment records state that the Veteran was being treated for hypertension with a medication, Minipress, but the records do not state the date of onset of hypertension or how long the Veteran had been treated for hypertension. Voluminous SSA records have been obtained. The earliest SSA records show that the Veteran was under treatment for hypertension when he was treated for back pain in 1992, but those records do not indicate a date of onset for hypertension or when the initial diagnosis of hypertension was first made. In 2001, the Veteran sought service connection for posttraumatic stress disorder (PTSD), and that claim was granted. The Veteran sought service connection for hypertension and cardiac disorders. He stated a belief that hypertension and cardiac disorders were related to his service-connected PTSD because there was no family history of cardiac disorders or hypertension and the Veteran did not have other risk factors, such as being overweight or sedentary. The Veteran provided a history of diagnosis of hypertension in 1976 and treatment for cardiac disorders since 1996. In April 2009, the Veteran was afforded VA examination. The examiner concluded that the Veteran's pre-induction examination, which disclosed a blood pressure of 138/88, showed that the Veteran had hypertension prior to service. The examiner also opined that it was at least as likely as not that the Veteran had CAD as a result of hypertension. As service connection has been granted for CAD based on a presumptions related to exposure to herbicides, this portion of the opinion is not relevant to the claims on appeal. In August 2009, a VA reviewer concluded that the Veteran's hypertension was unrelated to his service, and concluded that service-connected PTSD did not cause or aggravate hypertension. In 2010, VA authorized a presumption of service connection for ischemic heart disease for veterans exposed to herbicides. Because the Veteran served on the ground in Vietnam, he was granted presumptive service connection for CAD with congestive heart failure. However, since this grant of service connection was awarded after the VA examinations conducted in 2009, those examiners did not provide opinions as to whether hypertension was secondary to or aggravated by CAD. The Board sought additional medical opinion to address this possible etiology. The reviewer who provided an opinion which was received by the Board in June 2012 was advised that the Veteran is presumed to have been exposed to herbicides during his service on the ground in Vietnam. The reviewer was provided with a list of the Veteran's service-connected disabilities. The reviewer noted that no diagnosis of hypertension was assigned or treatment of hyperextension provided during the Veteran's service. The Veteran provided a history of first diagnosis of hypertension in 1976. The reviewer opined that the Veteran's hypertension is a risk factor for CAD but that CAD is not a risk factor for hypertension. The reviewer also opined that, although it has been hypothesized that PTSD could be a factor in aggravating hypertension, there is no current medical literature which proves such causality. The reviewer also opined that there was no medical rationale for a finding of a link between the Veteran's service-connected fungal infections of the feet, the Veteran's residuals of shell fragment wounds, or burn residuals. The reviewer concluded that the Veteran's document adequate control of hypertension contradicts the Veteran's contention that his PTSD aggravates his hypertension. Analysis In April 2009, the Veteran was afforded VA examination. The examiner concluded that the Veteran's pre-induction examination, which disclosed a blood pressure of 138/88, showed that the Veteran had hypertension prior to service. However, VA regulations define hypertension as a diastolic blood pressure predominantly 90 or over, or systolic blood pressure of 160 or more, confirmed by readings taken on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. The examiner did not explain why a diagnosis of hypertension was appropriate, when the Veteran's systolic blood pressure was taken only once prior to service and once during service, and both reading disclosed a diastolic blood pressure of less than 90 and a systolic blood pressure of less than 160. This opinion is of limited persuasive value. In any event, the Veteran, who served during a period of wartime, must be presumed sound on entry unto service, unless that presumption is rebutted. The provider who indicated that the Veteran had hypertension at the time of service induction, but did not opine that this evidence was so significant as to constitute clear and convincing evidence of pre-service hypertension. As such, the presumption of soundness if not rebutted. When the presumption if not rebutted, the claim is considered on a direct incurrence basis. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). The Veteran's own testimony establishes that hypertension was first treated in about 1976, when more than five years had elapsed after the Veteran's June 1970 service discharge. Thus, service connection may not be awarded for hypertension based on a presumption of service connection, since, even viewing the evidence in the light most favorable to the Veteran , he was not treated for hypertension until more than five years elapsed after his service discharge. The examiner who conducted August 2009 VA examination and the reviewer who provided a June 2012 opinion concluded that the Veteran's PTSD did not cause or aggravate hypertension. The conclusion was supported by the rationale that the Veteran's hypertension was well-controlled with medications, and this fact contradicts the Veteran's statements that PTSD aggravated his hypertension. The reviewer explained that, if there were aggravation due to PTSD, a medical provider would expect to see that the hypertension would not be as well controlled by medications. The Veteran has contended that his service-connected CAD caused, has aggravated, or currently aggravates his hypertension. The Board notes that the rulemaking which established the presumption of service connection for CAD based on exposure to herbicides excluded hypertension from that presumption. Thus, although service connection for CAD has been presumed, the regulation which established that presumption does not authorize presumptive service connection for hypertension. VA determined, for purposes of this regulation, that hypertension does not directly affect the muscles of the heart. The notice specified that hypertension was not included in the definition of ischemic heart disease. 75 Fed. Reg. at 53,204. In discussing the presumption available for service connection for certain cardiovascular disorders, VA commented that the rulemaking did not affect a claimant's ability to establish service connection for hypertension on a secondary basis when service connection for ischemic heart disease was presumed. However, in this case, the reviewer opined that, as the Veteran's hypertension appeared many years prior to diagnosis of CAD, CAD was not a cause of hypertension. The reviewer also opined that CAD did not aggravate the Veteran's hypertension, as the Veteran's hypertension was under good control with medications. Thus, the medical evidence is against a finding that CAD caused, aggravated, or currently aggravates hypertension. The presumption of soundness has not been rebutted. 38 U.S.C.A. § 1111. Thus, the April 2009 opinion that the Veteran had hypertension prior to or at the time of induction into service cannot, as a matter of law, serve as favorable evidence to warrant a grant of the claim. Wagner, supra. The preponderance of the evidence, especially the August 2009 and June 2012 VA opinions, and the Veteran's own statements and history provided for purposes of SSA disability application, is against a finding that hypertension was incurred during service or within an applicable presumptive period. Although the Veteran is competent to describe symptoms he had or observations he made, his lay statements are not competent to establish when hypertension was first manifested, since it is not a disorder observable by a lay person. In any event, the Veteran has reported an onset in 1976, at a time too long after service discharge for application of presumptions of service connection based on chronic disease or on continuity and chronicity of symptoms. The preponderance of the evidence, including the August 2009 and June 2012 VA opinions, is against a finding that hypertension is secondary to or aggravated by PTSD, CAD, or any of the Veteran's other service-connected disabilities. Each possible theory of legal entitlement to service connection for hypertension authorized by law has been considered, to include consideration incurrence d in service or secondary to or aggravated by a service-connected disability. There is no reasonable doubt which may be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). The appeal must be denied. ORDER The appeal for service connection for hypertension is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs