Citation Nr: 1237258 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-03 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran (Appellant) ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from January 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a January 2011 Travel Board hearing before a Veterans Law Judge who is no longer employed by the Board at the RO. A transcript is associated with the claims folder. A letter was sent to the Veteran in April 2012 asking whether he desired a new hearing before a different Board member, and he responded that he did not wish to appear at a hearing and wanted his case to be considered on the evidence of record. This case has been before the Board on three prior occasions, and the Board issued a remand for further development most recently in June 2012. As discussed below, the development requested by the Board has been completed, no further development is necessary, and the claim is now appropriate for appellate review. The RO granted service connection for posttraumatic stress disorder (PTSD) in a November 2011 rating decision. In May 2012, the Board received a statement from the Veteran in which he disagreed with the initial PTSD evaluation assigned. The Board does not have jurisdiction over the initial PTSD rating, and the issue is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 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 Veteran did not have cardiovascular injury or disease, including chronic symptoms of hypertension, during active service. 2. The Veteran's hypertension did not manifest to a compensable degree within one year of service separation. 3. Hypertension has not been continuous since service separation. 4. The Veteran's hypertension is not related to his active service. 5. The Veteran's hypertension is not causally related to or permanently worsened by any service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely May 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. In addition, the letter described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes post-service VA and private treatment records, a VA opinion, and the Veteran's statements, including his testimony at a January 2010 personal hearing before the Board. Unfortunately, the Veteran's service treatment records were destroyed in a fire at the National Personnel Records Center (NPRC) in 1973, and are not available. In a June 2007 statement, the Veteran stated that he did not have any copies of his service treatment records. In circumstances such as this, where the original service treatment records are unavailable, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A VA opinion was obtained in January 2012 with regard to the question of whether the Veteran's hypertension was incurred during or otherwise related to active service. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the January 2012 VA opinion obtained in this case is adequate as to the question of whether the Veteran's hypertension is directly related to active service. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file, and a contemporaneous physical examination and interview of the Veteran. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Subsequent to the Board's June 2012 remand, an addendum opinion was obtained from the January 2012 VA examiner to address the question of whether the Veteran's hypertension was caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). The template language of the Disability Benefits Questionnaire completed by the VA examiner in June 2012 in response to the Board's remand fails to address the question of whether hypertension was aggravated by PTSD, in that it reads, "[t]he claimed condition is less likely than not...proximately due to or the result of the Veteran's service-connected condition." However, in his rationale, the VA examiner addressed the question of whether the Veteran's hypertension was aggravated by his PTSD and provided adequate rationale for his opinion. Accordingly, the Board finds that the June 2012 VA opinion substantially complies with its June 2012 remand directives, and VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the hypertension claim, on both a direct and secondary service connection basis, has been met. 38 C.F.R. § 3.159(c)(4). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as hypertension, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. Id. To prevail on the theory of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Effective from October 10, 2006, 38 C.F.R. § 3.310 was amended. See 71 Fed. Reg. 52,744 (2006). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically in terms of requiring the establishment of a baseline level of disability for the non-service-connected condition prior to the claimed aggravation. Regardless of whether the case is considered under the old or new regulation, based upon the facts in this case, neither version is more favorable, and the regulatory change does not affect the outcome herein. 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve 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 Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal, 5 Vet. App. at 461 (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Hypertension The Veteran contends that his current hypertension was caused or aggravated by his service-connected PTSD. Specifically, he avers that his PTSD causes stress which, in turn, elevates his blood pressure. While this claim appears to be for secondary service connection, the Board will also consider whether the hypertension is directly related to service. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain an injury or disease manifesting hypertension during active service, and that symptoms of hypertension were not chronic during active service. Although the Veteran's service treatment records are not available, at the January 2010 personal hearing before the Board, the Veteran stated that he was not contending that his hypertension began during service or shortly thereafter. Moreover, there is no other evidence of record that suggests that the Veteran has suffered from hypertension any earlier than 1992. If there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Next, the Board finds that the weight of the evidence demonstrates that symptoms of hypertension were not continuous after service separation. The post-service evidence shows no history, complaints, findings, or a diagnosis of hypertension after service separation until many years later in 1992, as indicated by a March 2007 letter from Dr. S., a private physician, in which the doctor wrote that he had treated the Veteran since 1992 and was currently being treated for hypertension, among other conditions. The Board also finds that the weight of the evidence demonstrates that hypertension did not manifest to a compensable degree within one year of service separation. The weight of the evidence demonstrates no diagnosis or findings of hypertension of any severity during the one year post-service presumptive period. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2011). The evidence shows the first assessment of hypertension nearly 50 years after service separation in 1992. For these reasons, the Board finds that hypertension, first diagnosed in 1992, did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for hypertension are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. With regard to the claim for service connection for hypertension, neither the Veteran nor his representative has made a specific contention that hypertension started in service or that the Veteran has had continuous symptoms since service. As indicated, the Veteran testified at the Board hearing that his hypertension did not begin in service or shortly after service separation. The record shows the absence of any post-service history, complaints, symptoms, diagnosis, or treatment of hypertension for nearly 50 years after service until 1992. The Veteran has not alleged continuity of symptoms since service separation, and neither the lay nor medical evidence shows continuous post-service symptoms. The Board finds that the absence of contemporaneous medical evidence of continuity of symptomatology for nearly 50 years is one factor, along with the lay and medical evidence stated above, that the Board has considered in finding no continuity of symptomatology after service. See Buchanan, 451 F.3d at 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed hypertension is not related to his active service. A VA opinion was obtained to address this question in January 2012, as mentioned above. The VA examiner reviewed the claims file and conducted an interview and physical examination of the Veteran. The VA examiner opined that the hypertension was not incurred in or caused by active service, reasoning that the Veteran's hypertension was first diagnosed in 1992, almost 50 years after service separation in 1945. Based on this evidence, the Board finds that the weight of the competent and probative evidence demonstrates no relationship between the Veteran's current hypertension and military service, including no evidence of continuity of symptomatology of hypertension symptoms following service separation. The probative nexus opinion on file weighs against the claim, and, in fact, the Veteran has stated that he is not contending that his hypertension began during active service or shortly thereafter. The January 2012 VA opinion is competent and probative medical evidence because it is factually accurate, and is supported by an adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the claims file, interviewed and examined the Veteran, and fully articulated the opinion. The Veteran is also contending that his hypertension was caused or aggravated by his service-connected PTSD. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. The Veteran has service connection for PTSD. Service connection for PTSD was granted in a November 2011 rating decision. The Board finds that the weight of the evidence is against a finding that the Veteran's hypertension was caused or aggravated by service-connected PTSD. A VA opinion was obtained in June 2012 to address the question of whether the Veteran's hypertension was caused or aggravated by his PTSD. The VA examiner indicated that he personally conducted the examination of the Veteran and provides a medical opinion stating that hypertension was less likely than not incurred in or caused by the claimed in-service injury, event or illness nor was it causally related to or has been aggravated by his service-connected PTSD. The examiner provided a rationale and cited to a survey that indicated between 29 and 31 percent of adults in the United States have hypertension. He stated that obesity, high sodium intake, and a sedentary lifestyle were well-recognized major risk factors for hypertension. Further, the examiner noted that, consistent with this etiology, the Veteran weighed 206 pounds, and his BMI was 28, whereas normal BMI is less than 25. Further, per a March 2006 note from his primary care physician, at which time the Veteran was also being treated for hypertension, the VA examiner noted that the Veteran's weight was 216 pounds with a BMI of 31. The VA examiner further noted that a November 2005 treatment note indicated that the Veteran's abdomen was obese, and a February 2006 treatment note described the Veteran's abdomen as being "round." The VA examiner stated that, in addition to the Veteran's obesity and hypertension, the Veteran's lifestyle choices had also resulted in high cholesterol, for which he had been medically treated. Thus, the VA examiner concluded, as is the case for millions of other people who have hypertension, the Veteran's hypertension, as well, is caused and aggravated by his lifestyle choices (which also resulted in his obesity and high cholesterol), not his PTSD. The examiner further stated that the Veteran's obese body habitus, high sodium intake, and sedentary lifestyle were not related to service. There are no medical opinions of record which relate the Veteran's hypertension to his service-connected PTSD. Regarding the Veteran's statements as to the cause of the current hypertension, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson, 581 F.3d at 1316 (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, 492 F.3d 1372). However, in this case, the cause of the Veteran's hypertension involves a complex medical etiological question because it deals with the origin and progression of the Veteran's cardiovascular system and disorder of such internal and complex disease process (cardiovascular disorder) is diagnosed primarily on clinical findings and physiological testing. The Veteran is competent to relate symptoms of hypertension that he experienced at any time, but is not competent to opine on whether there is a link between the current hypertension and a service-connected disability, including PTSD, because such diagnosis requires specific medical knowledge and training. See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). For these reasons, the Board finds that weight of the lay and medical evidence that is of record outweighs the Veteran's more recent contentions regarding the relationship between his hypertension and service-connected PTSD. Based on the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran's hypertension was caused or aggravated by any service-connected disability. In this case, the record of evidence indicates that the Veteran did not incur hypertension during service, has not experienced continuous hypertension symptomatology since service, including not to a 10 percent degree within one year of service, and that there is no relationship, of either causation or aggravation, between his hypertension and any service-connected disability. For these reasons, service connection for hypertension must be denied. As the preponderance of the evidence weighs against the Veteran's claim for service connection for hypertension, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hypertension is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs