Citation Nr: 1302984	
Decision Date: 01/28/13    Archive Date: 02/05/13

DOCKET NO.  07-11 209	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for hypertension, including as secondary to exposure to herbicides (Agent Orange).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Anthony M. Flamini, Counsel


INTRODUCTION

The Veteran served on active duty from July 1969 to April 1971.     

This appeal comes to the Board of Veterans' Appeals (Board) from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

In May 2007, the Veteran provided testimony before RO personnel.  The transcript of the hearing has been associated with the claim and has been reviewed.  However, while the Veteran was scheduled to appear for testimony before a Veterans Law Judge in July 2009, he did not report for this hearing.

The Veteran's appeal was remanded by the Board in March 2011 so that the Veteran could be afforded a VA examination to determine the current nature and etiology of his hypertension, and whether it was due to in-service herbicide exposure.  This VA examination was conducted in April 2011.  Accordingly, the Board finds that there has been substantial compliance with the directives of the March 2011 Remand in this case, such that an additional remand to comply with such directives is not required.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required).

The issues of entitlement to service connection for pseudofolliculitis barbae as well as entitlement to a rating of 30 percent for functional gastrointestinal syndrome with severe gastroparesis were also remanded by the Board in March 2011.  However, these issues were subsequently granted in full by the RO in a February 2012 rating decision.  Accordingly, these issues are no longer on appeal before the Board at this time.


FINDING OF FACT

The probative and persuasive evidence of record does not relate the Veteran's hypertension to his military service, nor did hypertension manifest to a compensable degree within one year of service.


CONCLUSION OF LAW

Hypertension was not incurred in, or aggravated by, active military service or any service-connected disability, nor may it be presumed to be related to service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  A March 2005 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

However, prior to the initial adjudication of the issue by the agency of original jurisdiction (AOJ), there was no VCAA letter advising the Veteran that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits.  However, both the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) and the Court have since further clarified that the VA can provide additional necessary notice subsequent to the initial AOJ adjudication, with a subsequent readjudication of the claim, so that the essential fairness of the adjudication, as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that a statement of the case or supplemental statement of the case can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the statement of the case or supplemental statement of the case).  As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any problem associated with inadequate notice or the lack of notice prior to an initial adjudication.  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
 
In this case, after providing disability rating and effective date notice in September 2008, the RO readjudicated the claim in a February 2012 supplemental statement of the case.  In short, the content error here does not affect the essential fairness of adjudication of this case, and is not prejudicial.  Therefore, the presumption of prejudice is rebutted.  For these reasons, no further development is required regarding the duty to notify.  In any event, the Veteran has not alleged that any content error prevented him from meaningfully participating in the adjudication of his claim.  As such, the Veteran has not established prejudicial error in the content of VCAA notice.  

The Veteran's service treatment records, VA medical treatment records, and indicated private treatment records have been obtained.  A VA examination was conducted in April 2011; the record does not reflect that this examination was inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The VA examiner reviewed the Veteran's claims file and provided a complete nexus opinion with respect to the issue on appeal, accompanied by a full rationale for the conclusion stated.  

There is no indication in the record that any additional evidence relevant to the issue adjudicated in this decision is available and not part of the claims file.  See Pelegrini, 18 Vet. App. 112.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Decision Review Officer (DRO) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the May 2007 hearing, the DRO noted the elements of the claim that were lacking to substantiate entitlement to service connection.  The Veteran was assisted at the hearing by an accredited representative from the American Legion.  The representative and the DRO asked questions to ascertain the date of onset of high blood pressure and to determine whether the Veteran's current disability is related to his military service.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c) (2).

The Veteran seeks entitlement to service connection for hypertension.  Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  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) caused by or (b) aggravated by a service-connected disability.  Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310).

Other specifically enumerated disorders, including hypertension, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309.

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307.  "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307(a) (6) (iii).  

The diseases presumptively associated with said exposure now include chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma.  38 C.F.R. § 3.309(e) (2012); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010).  Hypertension is not among the list of diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e), and in fact, the notice at 75 Fed. Reg 168, 53202 indicates that hypertension is not intended to be on the list of presumptive diseases for herbicide exposure and is not the same thing as ischemic heart disease.  The Veteran can still establish service-connection on a direct basis.  Combee v. Brown, 34 F.3d 1039 (Fed. Circ. 1994).

The Secretary of Veterans Affairs also has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg 42,600 (June 24, 2002).

After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).  The benefit of the doubt rule is inapplicable when the evidence weighs against the claim.  Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

Under VA regulations, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters of mercury (mm/Hg) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm/Hg or greater with a diastolic blood pressure of less than 90 mm/Hg.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).  Also, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  Id.  

There is no evidence of hypertension, as defined by VA regulations, in service.  At the Veteran's May 1969 service entrance examination, his blood pressure was listed as 124/86 mm/Hg, and his vascular system was indicated to be within normal limits.  On his corresponding May 1969 Report of Medical History, he indicated that he never suffered from high or low blood pressure.  At a February 1970 examination, his blood pressure was noted to be 126/68 mm/Hg.  At his April 1971 service separation examination, his blood pressure test had the result of 128/80 mm/Hg.  His vascular system was again noted to be within normal limits at his February 1970 and April 1971 examinations.  

Subsequent to service, the Veteran's blood pressure readings were 118/70 mm/Hg in June 1974, 120/70 mm/Hg in June 1991, 133/60 mmHg in November 1991, 130/80 mm/Hg in December 1995, and 112/74 mm/Hg in May 1996.  It was not until a February 1997 VA examination that the Veteran's diastolic blood pressure was 90 mm/Hg or greater, as his reading at that time was 130/90 mm/Hg.  However, this was not confirmed by readings taken two or more times on at least three different days, and a diagnosis of hypertension was not rendered at that time.  The Veteran's blood pressure readings were 152/93 mm/Hg in June 2003, 161/101 mm/Hg in June 2006, and 138/90 mm/Hg in July 2006; however, diagnoses of hypertension were not rendered at these times.  The Veteran was diagnosed with probable diabetes mellitus in January 2004, and was finally noted to be hypertensive in August 2006, at which time his blood pressure was 161/109 mm/Hg.  

The evidence of record does not show that the Veteran's hypertension is related to service.  The Veteran was provided a VA examination in August 2007, at which time the examiner opined that the Veteran's service-connected diabetes could not have caused his hypertension because the two disorders were diagnosed simultaneously.  The examiner further explained that diabetes rarely caused hypertension, and that to do so the diabetes must be longstanding and create organ damage eventually leading to the hypertension.  

The Board's March 2011 remand recognized that, because the Veteran served in the Republic of Vietnam during the Vietnam War era, he was presumed to have been exposed to herbicides.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  Therefore, the Board found that the Veteran suffered an in-service injury of presumed exposure to herbicides and requested an additional VA examination and opinion to determine the current nature and etiology of the hypertension, including whether it was due to exposure to herbicides during service.

Pursuant to the Board's remand instructions, the Veteran was provided a VA hypertension examination in April 2011, at which time the examiner opined that his hypertension was not related to military service, to include presumed herbicide exposure, because it was not diagnosed until several decades after his separation from service in 1971.  In addition, the examiner opined that it was less likely than not that the Veteran's hypertension was caused or aggravated beyond its normal progression as a result of the Veteran's service-connected diabetes mellitus because the Veteran exhibited normal renal function as well as a normal urine microalbumin level.  

Thus, although hypertension is currently diagnosed, the pertinent regulatory criteria do not reflect the existence of hypertension, as a diagnosed disorder, until over 25 years subsequent to service.  To the extent that the Veteran has argued that his hypertension developed as a result of his military service, to include as due to his conceded herbicide exposure, the Veteran is not competent to provide an etiology opinion regarding his hypertension.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Because there is no evidence of hypertension in service or for many years afterward, and the probative and persuasive evidence of record does not relate the Veteran's hypertension to his military service or to a service-connected disability, the preponderance of the evidence is against his claim for service connection.  Hypertension also may not be presumed to be service connected because it did not manifest to a compensable degree within one year of service.  38 C.F.R. § 3.309 (2012).  As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied.   See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56.


ORDER

Entitlement to service connection for hypertension is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs