Citation Nr: 1301798	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO. 07-18 629	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure and as secondary to service connected posttraumatic stress disorder (PTSD). 

2. Entitlement to an initial disability evaluation in excess of 50 percent for PTSD. 

3. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from October 1964 to October 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and a March 2008 rating decision of the VA RO in Montgomery, Alabama. The October 2004 rating decision granted service connection for PTSD and assigned an initial 30 percent evaluation. The March 2008 rating decision denied service connection for hypertension. The VA RO in Montgomery, Alabama currently has jurisdiction over the Veteran's claims file. 

In its November 2010 decision, the Board remanded the Veteran's claim for service connection for hypertension to the RO via the Appeals Management Center (AMC), in Washington, DC for further development and it has now been returned to the Board. 

During the pendency of the appeal, a December 2009 rating decision increased the Veteran's PTSD evaluation from 30 percent to 50 percent, effective October 4, 2007. In its November 2010 decision, the Board granted an initial 50 percent evaluation, but no higher. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). 

The Veteran appealed his case to the U. S. Court of Appeals for Veterans Claims (Court), and in a February 2012 Memorandum Decision, the Court vacated the part of Board's decision which denied a rating in excess of 50 percent for PTSD, and remanded the matter to the Board for development. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issues of entitlement to a disability evaluation in excess of 50 percent for PTSD and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC.


FINDING OF FACT

The evidence of record does not show that the Veteran's currently diagnosed hypertension is related to military service, to include as secondary to herbicide exposure or to his service connected PTSD.


CONCLUSION OF LAW

The Veteran's hypertension was not incurred or aggravated in service, and may not be presumed to have been incurred in service, and is not proximately due to, or the result of, or chronically aggravated by his service connected PTSD. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in November 2007. This letter advised the Veteran of what evidence was required to substantiate his service connection claim on a direct basis, and of his and VA's respective duties for obtaining evidence. The letter also provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. A follow up letter was issued in July 2008 that provided notice regarding secondary service connection. His claim was then readjudicated. See Mayfield IV; see also Prickett, 20 Vet. App. at 376.  

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), as well as post-service VA and private treatment records.  Additionally, the Veteran was scheduled to testify at a hearing before the Board, but he withdrew his hearing request.

The Veteran was also provided with a VA examination for his hypertension in January 2011. The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

This case was remanded in November 2010 so that the Veteran could undergo a hypertension examination. There was substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103. 

Entitlement to Service Connection for Hypertension

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting 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). 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).

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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2010); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Veteran has been diagnosed with hypertension, satisfying the first elements of both a direct and secondary service connection claim. Hickson, 12 Vet. App. at 253, Wallin, 11 Vet. App. at 512. 

Regarding direct service connection, the Veteran's STRs do not show that he had symptoms or a diagnosis of hypertension. At his May 1964 entrance examination, his blood pressure was 130/88 and he denied having high blood pressure on his report of medical history. His blood pressure was 120/80 two times in October 1965. In his report of medical history for separation, he denied having high blood pressure. At his October 1966 separation examination, his blood pressure was 126/86. For VA rating purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Id. at Note (1). The Veteran's blood pressure readings during service do not constitute hypertension. The second element of a service connection claim is not satisfied. Hickson, 12 Vet. App. at 253.

Lastly, the nexus element of a service connection claim is not satisfied. Id. The Veteran underwent a VA examination for his hypertension in January 2011. He reported that he was first diagnosed with hypertension in the late 1980s or early 1990s. The examiner diagnosed the Veteran with essential hypertension, but concluded that the Veteran's hypertension was not caused by, related to, or aggravated beyond its natural progression during the Veteran's period of active service or his service connected PTSD. He explained that the cause of essential hypertension tended to be idiopathic and that the risk factors were multifactorial. They included ethnic background, genetic predisposition, and body weight. He elaborated that PTSD has not been shown to be an independent risk factor for hypertension. The opinion of the VA examiner provides probative evidence against the Veteran's claim. 

As discussed above, the Veteran reported that his first diagnosis of hypertension was in the late 1980s or early 1990s. The first documented diagnosis of hypertension in the record is in April 1988. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has not asserted that he began to have hypertension in service and that it has continued since then. Service connection based upon continuity of symptoms is not warranted. 38 C.F.R. § 3.303(b). 

There is no other medical or lay evidence of record in support of the Veteran's claim for service connection on a direct basis. The probative evidence of record is against the Veteran's claim. Service connection on a direct basis is not warranted.

Regarding presumptive service connection, the nexus element of a service connection claim may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, hypertension) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. As discussed above, the Veteran has not asserted, and the evidence does not show, that he was diagnosed with hypertension within one year of his separation from service in October 1966. Therefore, the presumption is not applicable.

The Veteran also asserts that his hypertension was caused by exposure to herbicides. He served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). 

Hypertension is not listed as a disease associated with herbicide exposure. The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Moreover, the Secretary has specifically determined that there is inadequate or insufficient evidence to determine whether an association exists between certain health outcomes, including circulatory disorders such as hypertension. This is defined to mean that the available studies are of insufficient quality, consistency, or statistical power to permit a conclusion regarding the presence or absence of an association with herbicide exposure. The notice goes on to state that VA has determined that a positive association does not currently exist between herbicide exposure and hypertension. See Notice, 75 Fed. Reg. 32540, 32542, 32552 (2010). Therefore, presumptive service connection is not warranted. 

Even if the claimed conditions are not included on the list of diseases associated with herbicide exposure, service connection as directly related to such exposure is not precluded. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In this case, the Veteran has not submitted evidence showing that his hypertension is directly related to exposure to herbicides. 

Lastly, with regard to secondary service connection, the Veteran is service connected for PTSD, satisfying the second element of a secondary service connection claim. Wallin, 11 Vet. App. at 512. However, the nexus requirement is not satisfied. As discussed above, the January 2011 VA examiner found PTSD has not been shown to be an independent risk factor for hypertension. The examiner concluded that the Veteran's hypertension was not caused or aggravated beyond its natural progression by PTSD. The opinion of the VA examiner provides probative evidence against the Veteran's claim. 

In support of his claim, the Veteran submitted a copy of an unrelated Board decision that granted service connection for hypertension secondary to service connected PTSD. Each appeal before the Board is based upon facts unique to that case, and prior Board decisions have no precedential weight on a presiding Veterans Law Judge. See 38 C.F.R. § 20.1303 (2012). The facts of the decision submitted by the Veteran are different from his case. For example, in the decision he submitted, there were several favorable medical opinions in support of the claim. In this case, there are no such opinions. The unrelated Board decision submitted by the Veteran is not probative evidence in support of his claim. 

There is no additional medical or lay evidence in support of the Veteran's claim. The opinion of the January 2011 VA examiner is more probative than the Board decision submitted by the Veteran. The nexus requirement of a secondary service connection claim is not satisfied. Wallin, 11 Vet. App. at 512.

In summary, the preponderance of the evidence is against the Veteran's claim for service connection on both a direct and secondary basis. Further, presumptive service connection is not warranted. Therefore, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and service connection for hypertension is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).




ORDER

Entitlement to service connection for hypertension is denied. 


REMAND

While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. A new VA examination is needed for three reasons. First, an examiner must determine the current severity of the Veteran's PTSD including an assessment of his social and occupational impairment. Second, an examiner must determine whether the Veteran's PTSD prevents him from procuring or maintaining substantially gainful employment. Third, an examiner must determine whether the Veteran has dementia and if so, whether his cognitive symptoms are related to it or to his PTSD. 

VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected PTSD. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). 

The Veteran's most recent VA examination was conducted in August 2009. The examiner concluded that based upon multiple objective tests, the Veteran's symptoms were inconsistent with a diagnosis of PTSD. He stated that due to the results of the objective testing, the severity of the Veteran's condition was unclear and therefore the relationship between his mental health and his occupational and social functioning was also unclear. The examiner assigned a GAF score of 75, but stated that it was "speculative and conservative" because of the objective testing results. The examiner concluded that the Veteran "may be experiencing symptoms of [d]ementia that are unrelated to PTSD."  The August 2009 VA examination does not reflect the current severity of the Veteran's symptoms because the results of the objective testing were inaccurate. 

Further, the record indicates that the Veteran's PTSD symptoms may have increased in severity. Since August 2009, VA treatment records in October and November 2009 appear to possibly show an increase in depression, passive suicidal ideation, and memory problems. 

The medical evidence of record shows that the Veteran experiences forgetfulness, difficulty concentrating, and difficulty paying attention. Several VA treatment records indicate that his symptoms are consistent with dementia and that it should be ruled out as a diagnosis. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102, Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In this case, the medical evidence of record suggests that the Veteran may have dementia that is unrelated to PTSD. However, the record is not sufficient for the Board to make such a determination at this time. See also Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the Board may not make use of its own unsubstantiated medical conclusions); 38 U.S.C.A. § 5103A(d). 

TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). 

Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 

Here, the Veteran has claimed entitlement to an increased rating for his service-connected PTSD and has stated that his psychiatric symptoms caused him to leave his job and prevent him from working. Further, in a September 2011 statement, J. W., the Veteran's Certified Vocational Rehabilitation Counselor and VHA Readjustment Counseling Therapist, stated that the Veteran's psychiatric symptoms rendered him unable to obtain employment. Therefore, under Roberson, an informal claim for TDIU has been raised. A remand is necessary so that a VA examiner may address whether the Veteran's PTSD renders him unemployable. 

Accordingly, the case is REMANDED for the following action:

1. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any non-VA treatment records not currently on file. Obtain these records and associate them with the claims folder. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 

2. Then, schedule the Veteran for an examination with a clinician of appropriate expertise. The purposes of the examination are to determine the current severity of the Veteran's PTSD and its impact on his occupational and social functioning, and to determine whether he has dementia. The claims folder and a copy of this remand, and a complete rationale should be provided for any opinion expressed (that is, the examiner should explain why, and indicate what medical evidence supports, the examiner's conclusions). The examiner should:
      
a)  assess the severity of the Veteran's PTSD (to include its impact on social and occupational functioning). To the extent possible, the examiner should provide a global assessment of functioning (GAF) score. If providing a GAF score is not possible, the examiner should explain why in the examination report. 

b) provide an opinion as to whether the Veteran's PTSD prevents him from procuring or maintaining substantially gainful employment. 

c) determine whether the Veteran has dementia. If the Veteran is found to have dementia, or another similar condition, the examiner should delineate, to the extent possible, which symptoms are related to dementia and which are related to PTSD. The examiner must specifically address the symptoms of forgetfulness, memory loss, difficulty concentrating, and difficulty paying attention. 

3. Then readjudicate the appeal.  If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).








This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
MATTHEW W. BLACKWELDER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs