Citation Nr: 1303422 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 07-38 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension, claimed as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from January 1975 to June 1982. This matter came before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge at the RO in March 2011. A transcript of his hearing has been associated with the record. The Board remanded the appeal in June 2011 and June 2012 for additional development of the record. The Board notes that a Virtual VA e-file exists for the Veteran. This e-file was checked for new or relevant information; however, a review of the e-file revealed that it contained duplicative information that is already in the file and not pertinent to the current claim. FINDINGS OF FACT 1. Hypertension was not manifest in service or within the first post-service year; hypertension is otherwise unrelated to service. 2. Hypertension is unrelated to the service-connected PTSD. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Hypertension is not proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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); 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 claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 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). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 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. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in June 2008 discussed the evidence necessary to support a claim for service connection on a direct basis. The Veteran was invited to submit or identify evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was advised of the manner in which VA determines disability ratings and effective dates. A July 2008 letter provided similar information, but also discussed the evidence necessary to support a claim for service connection on a secondary basis. Subsequent letters advised the Veteran of the status of his claim. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file. The Veteran was afforded a VA examination, and an addendum was subsequently rendered. The Board finds that the examination addendum was adequate in that the examining physician reviewed the record, interviewed the Veteran, and performed an appropriate examination prior to providing his conclusions. In addition, the physician who provided the addendum reviewed the complete record and provided conclusions with a discussion of the evidence in support of his findings. The examination and addendum reports of record are thorough and consistent with contemporaneous treatment records, and adequately respond to the questions posed in this appeal. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claim. 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) (2011) requires that the VLJ/DRO who chairs 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, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim, namely a more definitive nexus opinion from his private physician. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, 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. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis The Board notes that the service treatment records contain no diagnosis, complaint, or abnormal finding suggestive of hypertension, and such is not shown until many years following separation. The Veteran has not argued otherwise. Rather, he asserts that he has hypertension that is secondary to his service-connected PTSD. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 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). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. 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 caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service incurrence or aggravation of cardiovascular renal disease, including hypertension, may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). A VA treatment record dated in November 2005 indicates that the Veteran's non-VA medications included hydrochlorothiazide. Outpatient medications also included sertraline for depression. The provider noted hypertension as a current medical condition. A June 2006 VA mental health record indicates that the Veteran was diagnosed with PTSD in 2005. The provider noted that might have delayed ejaculation related to sertraline. A June 2007 VA record indicates that the Veteran presented for primary care initial evaluation. He reported a history of hypertension diagnosed in 2007. The provider noted that active medications included sertraline and trazodone. In April 2008 the Veteran was prescribed Wellbutrin and continued on trazodone. A VA hypertension examination was carried out in October 2008. The examiner indicated that the Veteran had been diagnosed with hypertension four or five years previously on routine examination. The Veteran reported that he had always had elevated blood pressures; he noted that he was told that he would have to take medication for the rest of his life. He noted that when he was seen by psychiatry he was told that his blood pressure was high, but he was allowed to rest and it returned to normal. The examiner concluded that the Veteran's PTSD had not caused the Veteran's hypertension. He reasoned that although psychological stress could cause blood pressure to go up temporarily, it did not cause the physiologic change in the body that resulted in chronic hypertension. He also concluded that PTSD had not aggravated the Veteran's hypertension to the extent that it caused changes in the Veteran's basic physiology that would result in chronic elevated hypertension beyond the normal course. He added that it was as likely as not that the Veteran's PTSD had caused transient elevations in blood pressure that would be considered aggravation but in his opinion it was not as likely as not that such caused permanent blood pressure changes. Active outpatient medications listed in a June 2009 VA treatment record include bupropion for depression. During his March 2011 hearing, the Veteran testified that his blood pressure was high every time he got upset. In July 2011, the October 2008 examiner reviewed the Veteran's claims file and history. He concluded that none of the Veteran's currently listed rated disabilities had a clear pathophysiology that would lead to persistent or permanent aggravation of hypertension. He noted that the service treatment records demonstrated evaluation and treatment of a variety of acute illnesses, none of which could be found as being chronic in nature or ones with any pathophysiologic connection to development of persistent or permanent aggravation of hypertension. He provided a list of commonly recognized causes of hypertension. This list included various drugs, to include antidepressants. Another physician reviewed the Veteran's claims file in August 2012. He concluded that the claimed hypertension was less likely than not proximately due to or the result of the Veteran's service-connected condition. He noted that the Veteran's record indicated onset of hypertension around 2003 or 2004, although the exact time of the diagnosis was not clear. He indicated that the Veteran had been treated with hydrochlorothiazide and pointed out that such had been noted since 2005 but that the exact time it was started could not be determined from the medical records. He indicated that the Veteran was treated in 2003 for job related stress and prescribed hydroxyzine, and that he was diagnosed with PTSD in 2005. He related that the Veteran was treated from 2005 to 2008 with sertraline and with trazodone from 2007 to 2009; he also noted that sertraline was stopped In 2008 and the Veteran was started on bupropion, which he had continued to take to the present. He noted that the Veteran's blood pressure medication had remained constant since the tine it was started. He indicated that according to his research, sertraline and hydroxyzine had not been associated with causing or aggravating hypertension. He also indicated that trazodone had been associated with a 1.3 percent to 2.1 percent incidence of hypertension compared to a placebo of less than 1 percent, and that bupropion had been associated with a 2.5 percent to 4.2 percent incidence of hypertension. He therefore eliminated sertraline and hydroxyzine as having an association with hypertension and concluded that it was less likely as not that those medications caused or permanently worsened the Veteran's hypertension. He also eliminated trazodone and bupropion, noting that the Veteran was diagnosed and treated for hypertension prior to starting trazodone and bupropion. He indicated that the Veteran's hypertension had remained stable and well controlled with hydrochlorothiazide, which was started prior to the initiation of treatment with trazodone and bupropion and there had been no increase in the medications required to treat hypertension since those medications were started. Having carefully reviewed the record, the Board has determined that service connection is not warranted for hypertension. As noted above, the Veteran does not maintain that his hypertension manifested during service or within the first post-service year. Rather, he has specified his belief that hypertension is related to his service-connected PTSD and the medications he takes for his psychiatric symptoms. In that regard, while the evidence reveals that the Veteran currently suffers from hypertension, the competent, probative evidence of record does not etiologically link this condition to his PTSD, to include medications taken for the symptoms of that disorder. For purposes of establishing secondary service connection, there is post-service medical evidence of PTSD for which the Veteran is in receipt of service connection. However, the Veteran has neither produced nor identified competent evidence showing that his service-connected PTSD, to include medications he takes for it, either caused or aggravated the claimed hypertension. On the other hand, VA physicians have concluded that the Veteran's hypertension is neither related to service nor the Veteran's PTSD. While the October 2008 VA examiner acknowledged that it was likely that PTSD had caused transient elevations in blood pressure, he ultimately concluded that it did not cause permanent blood pressure changes. In July 2011 this examiner again reviewed the record and concluded that none of the Veteran's rated disabilities had a clear pathophysiology that would lead to persistent or permanent aggravation of hypertension. Finally, the physician who reviewed the record in August 2012 concluded that hypertension was not associated with medications used to treat the Veteran's psychiatric symptoms. In assigning high probative value to the 2008 examiner's opinions, the Board notes that he had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. He subsequently conducted an additional review of the file and provided an additional reasoned opinion. The physician who reviewed the record in August 2012 also provided a reasoned opinion, including a detailed recitation of the type and duration of the Veteran's prescription medications and their relative capacity to be etiologically related to hypertension. There is no indication that these VA physicians were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Therefore, the Board finds the VA examiners' opinions to be of great probative value. The Board has considered the Veteran's statements concerning the etiology of his hypertension. The Veteran is certainly competent to report the onset of symptoms and the circumstances surrounding such. However, the Board finds that the Veteran is not competent to offer an opinion on a complex medical matter, to include opining as to the degree that his PTSD, related symptomatology, and medications therefor caused or contributed to the development of hypertension. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the etiology of this claimed disability is ultimately far too complex a medical question to lend itself to the opinion of a layperson. Therefore, the Board finds that the conclusions of the VA examiner far outweigh the Veteran's lay assertions. In light of the above discussion, the Board must conclude that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension on either a direct or secondary basis, and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs