Citation Nr: 1302913 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 08-14 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a cardiovascular disease, to include hypertrophic obstructive cardiomyopathy. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from October 1971 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs Regional Office (RO) in Roanoke, Virginia, denying the claims currently on appeal. The Veteran perfected a timely appeal to the Board, as he identified only the issues currently on appeal. See Notice of Disagreement (NOD), dated September 2007; Statement of the Case (SOC), dated March 2008; and Substantive Appeal (VA Form 9), dated May 2008. Supplemental SOCs were issued in December 2009, June 2011, February 2012, and December 2012. In April 2010 and May 2012 the Board remanded the case for further action by the Agency of Original Jurisdiction (AOJ). The case has now returned to the Board for further appellate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran did not exhibit hypertension in service or to a compensable degree within one year after discharge from service, and hypertension is not otherwise shown to be associated with service. 2. The Veteran did not exhibit a cardiovascular disease, to include hypertrophic obstructive cardiomyopathy, in service or within one year after discharge from service, and hypertrophic obstructive cardiomyopathy is not otherwise shown to be associated with service or with an injury or disease of service origin. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for establishing service connection for a cardiovascular disease, to include hypertrophic obstructive cardiomyopathy, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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. Prior to initial adjudication of the Veteran's claims, a letter dated in May 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. This letter also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2011) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. There is no indication the Veteran was in receipt of Social Security Administration (SSA) Disability benefits that warranted obtaining additional records. Furthermore, the Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded a VA examination in June 2010, and the results of which have been included in the claims file for review. This VA examination involved review of the claims file and thorough examinations of the Veteran. In addition, addendums to the June 2010 VA opinion were obtained in January 2012 and April 2012. Therefore, the Board finds that the examination and addendums are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Additionally, the Board finds there has been substantial compliance with its April 2010 and May 2012 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) Therefore, in light of the foregoing, the Board will proceed to review and decide the claims based on the evidence of record. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. I. Merits of the Claim The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (The law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as hypertension and cardiovascular disease, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. § 3.309(a). For reference purposes, VA defines hypertension as being present if the diastolic blood pressure is 90 mm Hg or more or the systolic pressure is 140 mm Hg or more, or if both are present. See Veteran Benefits Administration (VBA) Training Letter 00-07 (July 17, 2000). In isolated systolic hypertension, the systolic pressure is 140 mm Hg or more, but the diastolic pressure is less than 90 mm Hg. Id. Multiple blood pressure readings are required to confirm the diagnosis of hypertension with VA's rating schedule requiring 2 or more readings on at least 3 different days. Id. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). A 10 percent rating is warranted for hypertensive vascular disease (hypertension and isolated systolic hypertension) where diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or where the individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As an initial matter, the Board acknowledges that the Veteran has current diagnoses of hypertension and hypertrophic obstructive cardiomyopathy, as reflected in various VA and private medical treatment records. For the issue of entitlement to service connection for hypertension, the Veteran's service treatment records reflect that in November 1971 the Veteran's blood pressure measured at 104/64. The service treatment records contain no instances of elevated blood pressure and reveal no complaints, treatment, or diagnosis for hypertension during his period of active duty. A Chronological Record of Medical Care, dated September 1975, reflects that the Veteran showed a blood pressure reading of 160/80. An April 1976 Navy Reserve Affiliation examination report reflects that the Veteran showed a blood pressure reading of 126/78. A September 1977 Annual Navy Reserve examination report reflects that the Veteran showed a blood pressure reading of 134/90. A January 1985 treatment record shows the Veteran showed a blood pressure reading of 142/90. A February 1988 Portsmouth Naval Hospital record reflects that the Veteran showed a blood pressure reading of 158/102. In a December 2006 VA medical statement, R.T. D., M.D., a VA physician, opined that the Veteran has suffered from hypertension since a year after discharge from service. Dr. D. noted that the blood pressure reading of 160/80 from September 1975 was well above the ideal blood pressure goal at that time, which was 140/90 or less. He further noted that the Veteran had been followed at the Hampton, Virginia, VA Medical Center in October 2005 and had continued anti-hypertension treatment since. The Veteran submitted lay statements from friends and former service members in December 2006, which indicate to the effect that the Veteran complained during service of dizziness and headaches that were believed to be attributed to possible high blood pressure. The Veteran was afforded a VA examination in June 2010, and the VA examiner stated that she reviewed the Veteran's claims file and medical records. After going through the Veteran's medical history, the VA examiner opined that it was at least as likely as not that the Veteran hypertension had its onset in service or within one year. In January 2012 the AMC sent the Veteran's claims file back to the VA examiner for a clarifying opinion, and in January 2012 the VA examiner opined that the evidence was reviewed and it was her opinion that the Veteran's hypertension did not have its onset during the military or within one year of discharge. In May 2012, the Board observed, however, that the VA examiner's June 2010 and January 2012 opinions contradicted each other and provided no rationale for either opinion or for the VA examiner's change in her opinion. Therefore, the Board remanded this matter for a clarifying medical opinion. In an April 2012 addendum, the VA examiner opined that it was less likely than not (less than 50 percent probability) that the hypertension was incurred in or caused by service. The VA examiner noted that she had reviewed the claims file and that the blood pressure recordings showed: blood pressure of 104/62 in November 1971; blood pressure of 126/78 in April 1976; and blood pressure of 134/90 in September 1977. The VA examiner observed that the records contained no evidence of hypertension during service or at separation. The VA examiner acknowledged the statement from the Veteran's friend (D. W.), who stated he believed that the Veteran had high blood pressure because the Veteran experienced dizziness and headaches. The VA examiner explained that this statement was not the same as an actual blood pressure reading, and that the symptoms were non-specific and non-diagnostic. The examiner noted that the Veteran had a blood pressure reading of 160/80 in September 1975. She explained, however, that according to the "JNC-7 guidelines," a diagnosis of hypertension is not made on one measurement, and further explained that such diagnosis must meet the guidelines on three different occasions, the evidence of which was lacking in this case. For the reasons that follow, the Board finds that service connection is not warranted for hypertension. Here, the evidence of record shows that the Veteran did not exhibit an onset of hypertension during active duty. The service treatment records show that the Veteran's blood pressure measured 104/62 in November 1971, and contained no complaint, finding or diagnosis of hypertension during active duty. Therefore, the record evidence fails to establish that hypertension was noted, or had its onset, during the Veteran's period of active duty service. The Veteran alternatively contends that his hypertension was manifested within one of his discharge from service, thereby warranting presumptive service connection. In support of this contention, the Veteran proffers a September 1975 chronological record of medical care, which shows an elevated blood pressure reading of 160/80, and a VA medical statement from Dr. D., which expressed the opinion that the Veteran suffered from hypertension since a year after his discharge from service based on the 1975 blood pressure reading. By contrast, the VA addendum opinion of April 2012, which took to into consideration the Veteran's blood pressure readings during and after service, concludes that the JNC-7 guidelines were lacking in this case; and as such, a diagnosis of hypertension cannot be sustained on the 1975 isolated elevated blood pressure reading. In any event, even assuming arguendo that the September 1975 blood pressure of 160/80 is indicative of a diagnosis of hypertension, the Veteran claim still fails on a presumptive basis because this chronic disease must have manifested to a compensable (10 percent) degree within one year from the date of separation from service. Here, the 1975 blood pressure reading of 160/80, as well as the blood pressure readings of 1976 and 1977, (which was 126/78 and 134/90, respectively) does not rise to a compensable degree. The Veteran's diastolic pressure was not predominantly 100 or more, the systolic pressure was not predominantly 160 or more, and the lay and medical record (including Dr. D.'s medical statement) contains no confirming evidence that the Veteran was prescribed continuous medication for control of hypertension within the 1-year presumptive period. See 38 C.F.R. §§ 3.307, 3.309; 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board acknowledges the Veteran's lay statements regarding his hypertension. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). To the extent that the Veteran has made statements regarding the onset and nature of the claimed disability, he is certainly competent to describe the extent of his current symptomatology and to report experiencing a continuity of symptomatology from service onwards. The Board notes, however, that he is not competent to diagnose in-service hypertension, and nor is he competent to link his current hypertension to any injury or disease of service origin, especially when the record clearly reflects that the Veteran exhibited no elevated blood pressure reading during active duty. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, in the absence of medical evidence of a link between the Veteran's hypertension and his active duty service, or medical evidence establishing hypertension to a compensable degree within the one-year presumptive period following the Veteran's separation from service, service connection for hypertension is not warranted. As the preponderance of the evidence is against this claim, the doctrine of reasonable doubt is not for application. Gilbert, 1 Vet. App. at 54-56. Turning next to the claim for entitlement to service connection for hypertrophic obstructive cardiomyopathy, as previously stated, the Board finds that the Veteran does have a current diagnosis. Therefore, the remaining inquiry is whether hypertrophic obstructive cardiomyopathy is related to the Veteran's military service or to an injury or disease of service origin. Here, his service treatment records show no signs, symptoms, history, complaint, or treatment for any condition referable to hypertrophic obstructive cardiomyopathy, or any other cardiac disorder. The Veteran's service medical records during his service in the Reserves show no evidence of a cardiac disorder. Moreover, the record contains no evidence showing that such manifested to a degree of 10 percent or more within the one-year from the date of his separation from service in October 1974. According to treatment records from his private cardiologist, Dr. P. R. G., the Veteran was first diagnosed with hypertrophic cardiomyopathy in October 2000. Subsequent treatment records from Dr. G. from October 2000 to October 2004 do not indicate the Veteran's hypertrophic cardiomyopathy is related to his military service or that it started within one year after separation from service. Furthermore, the June 2010 VA examiner, after reviewing the claims file, interviewing the Veteran, and conducting a physical examination, determined that hypertrophic obstructive cardiomyopathy was not incurred in or aggravated by the Veteran's military service. The VA examiner explained that based on medical literature, hypertrophic obstructive cardiomyopathy was a genetic defect of the cardiac sarcomere, caused by mutations in genes that encode different components of the contractile apparatus. The Board notes that the only evidence of record in support of the Veteran's claim consists of his own lay statements. However, he is not competent as a lay person to provide an opinion concerning medical causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, the evidence as discussed above demonstrates that the Veteran is not entitled to service connection for cardiovascular disease, to include hypertrophic obstructive cardiomyopathy. Here, the Veteran does not allege, nor does the record show, that this disability had it onset in service to include chronicity of the same since service, or was manifested within the one-year from the date of separation from service. In fact, as stated above, the Veteran was diagnosed with hypertrophic cardiomyopathy in October 2000, many years after his discharge from the military. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. Moreover, the Veteran does not contend, nor does the record evidence show that the Veteran's hypertension and hypertrophic obstructive cardiomyopathy are the result of an injury or disease of service origin. Instead, the Veteran contends that his hypertrophic obstructive cardiomyopathy is adjunct to his non-service connected hypertension. However, as service connection for hypertension has been denied herein, by law, service connection for hypertrophic obstructive cardiomyopathy as secondary to hypertension is not warranted. Therefore, the Board finds that under the law, the Veteran lacks legal grounds to establish entitlement to service connection for hypertrophic obstructive cardiomyopathy. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In Sabonis, the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Insofar as service connection is not in effect for the disability claimed by the Veteran to have proximally caused his hypertrophic obstructive cardiomyopathy, service connection on a secondary basis is not applicable under the law. As there is no legal entitlement, the claim of entitlement to service connection for hypertrophic obstructive cardiomyopathy as secondary to hypertension is without legal merit. Id. 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. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a cardiovascular disease, to include hypertrophic obstructive cardiomyopathy, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs