Citation Nr: 1304780 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 08-19 697A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for valvular heart disease, including as secondary to hypertension. 3. Entitlement to service connection for a gastrointestinal disorder, claimed as ulcers. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to October 1991, and from February 2003 to April 2004. She served in Southwest Asia from April 24, 2003 to March 10, 2004, and had additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for the issues on appeal. In May 2012, the Board remanded the issues listed above. The case has returned to the Board for appellate review. The issue of whether new and material evidence has been received to reopen a claim for service connection for a mental health disorder has been raised by the record-see the Veteran's May 2012 claim-but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the 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) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a gastrointestinal disorder, claimed as ulcers, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The most probative evidence fails to link the Veteran's current hypertension to active service. 2. The most probative evidence fails to link the Veteran's current valvular heart disease to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). 2. The criteria for service connection for valvular heart disease have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper 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 in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the Veteran's claims for service connection for hypertension and valvular heart disease, VA's notice requirements were satisfied by letters issued in June 2005, January 2008, May 2012, and July 2012, which advised the Veteran of the criteria for establishing service connection. The June 2005 letter was sent prior to the initial adjudication of the Veteran's claims, and AOJ most recently readjudicated those claims in November 2012. Next, VA has a duty to assist the Veteran in the development of her claim. This duty includes assisting her in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment and personnel records and records of her post-service VA and private treatment. VA has also obtained the Veteran's records from the Social Security Administration (SSA). No VA examination was provided for the Veteran's claimed hypertension because the information and evidence of record does not indicate that the claimed disability or symptoms may be associated with any event, injury, or disease in service, or with another service-connected disability. Specifically, the Veteran's hypertension was initially diagnosed during a period of inactive duty for training (INACDUTRA), and the evidence shows no increase in the disability during active service. No VA examination was provided for the Veteran's claimed valvular heart disease because the information and evidence of record does not indicate that the claimed disability or symptoms may be associated with any event, injury, or disease in service, or with another service-connected disability. Specifically, the Veteran's service treatment records include no complaints, diagnosis, or treatment of valvular heart disease, and there is no competent evidence of record that associates her valvular heart disease with her service. While a March 2006 examination to determine the relationship between the Veteran's valvular heart disease and her hypertension is of record, the Board need not consider the adequacy thereof because the Veteran is not in receipt of service connection for hypertension. Additionally, with respect to the Veteran's claims for service connection for hypertension and valvular heart disease, there is substantial compliance with the Board's prior remand instructions. The Board's instructions included requesting information regarding any additional treatment records, and obtaining the Veteran's SSA records. In response, the AOJ sent the Veteran May 2012 and July 2012 letters that requested additional information regarding treatment records. The AOJ also obtained the Veteran's SSA records. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions as to the issues of service connection for hypertension and valvular heart disease, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Analysis: Hypertension The term "service," as used in 38 C.F.R. § 3.303, includes active duty and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty. See 38 C.F.R. §§ 3.6(a), (c), (d). The Board notes that hypertension was first documented on a November 2, 2002, reserve service examination report. However, the Veteran was not on active duty or ACDUTRA at that time, based on the fact that said date was not listed among the dates of active service or ACDUTRA that were specifically listed in her documented service personnel records and DD 214 Forms. Moreover, the Veteran informed an in-service clinician in March 2003 that she had had hypertension for three years; the Veteran also informed a VA clinician in October 2002 that she had been diagnosed with hypertension about three years earlier. As the foregoing pre-dates the Veteran's 2003/2004 period of active duty, the analysis turns to one of aggravation. In this regard, the Board must determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Veteran asserted in her July 2008 substantive appeal that her hypertension "medicine was increased to aid the additional aggravated symptoms in Iraq." Although the existence of hypertension was documented in service medical records dated after November 2002, the Board further finds that the Veteran's hypertension was not aggravated by such service. Specifically, the Veteran underwent Post-Deployment Health Assessments in April 2004 and December 2004, and in both instances no pertinent follow-up was indicated. Moreover, the Veteran's blood pressure was found to have decreased from 140/86 (diastolic/systolic) in November 2002 to 140/80 in March 2003. Id. Accordingly, service connection is not warranted on the basis of aggravation of a pre-service disability because, as discussed above, there was no increase in the disability during service. 38 C.F.R. § 3.306. The Board has considered the Veteran's July 2008 assertion that her hypertension "medicine was increased to aid the additional aggravated symptoms in Iraq." A layperson is competent to report on the onset and continuity of her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran is competent to report that she had "additional aggravated symptoms" of hypertension in Iraq that required an increase in her medication, the Board finds that this contention is not credible, for four reasons. First, the Veteran has not listed, described, or otherwise explained what additional symptoms of hypertension she experienced. Second, the Veteran's service treatment records do not show any evidence of increased symptoms or aggravation of her hypertension during her active service. Third, as discussed above, clinicians who examined the Veteran in April 2004 and December 2004 did not find that a referral for hypertension was indicated, and neither did they cite any aggravation or additional symptoms of hypertension. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history). Fourth, the Veteran's credibility was significantly undermined by her statement to a VA heart examiner in March 2006 that she was diagnosed with hypertension and initiated on medications in 2003; the Board finds this to be especially significant because she was on active duty for most of 2003, but had previously informed an in-service clinician in March 2003 that she had had hypertension for three years, and had also informed a VA clinician in October 2002 that she had been diagnosed with hypertension about three years previously. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In view of the forgoing, the Board does not accord the Veteran's statements any evidentiary weight. The most probative evidence of record shows that the Veteran's hypertension was neither incurred in or aggravated by service. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issue is denied. Analysis: Valvular Heart Disease As an initial matter, the Board notes that service connection for valvular heart disease as secondary to hypertension is not warranted because the Veteran is not in receipt of service connection for hypertension. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as cardiovascular-renal disease, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, this presumption is inapplicable in this case because the Veteran was not diagnosed with cardiovascular-renal disease to a degree of 10 percent within one year from the date of termination of service. The Veteran asserted in her July 2008 substantive appeal that valvular heart disease was found upon her return from Operation Iraqi Freedom in 2004. The Veteran's service treatment records include no complaints, diagnosis, or treatment of valvular heart disease. In Post-Deployment Health Assessments dated April 2004 and December 2004, clinicians found that the Veteran had no cardiac disorder for which referral was indicated. After service, including during the pendency of the claim, the Veteran has multiple diagnoses of valvular heart disease. In March 2006, a VA cardiologist found that an echocardiogram revealed thickening of the mitral valve with associated moderate-to-severe mitral regurgitation (MR). In August 2006 and January 2007, another VA physician diagnosed the Veteran with severe mitral regurgitation. In April 2007, a VA physician's assistant found that the Veteran's mitral regurgitation was mild. In June 2009, another VA physician again diagnosed mitral regurgitation. The Veteran is competent to assert, as she did in her July 2008 substantive appeal, that her valvular heart disease was found upon her return from Operation Iraqi Freedom in 2004. Davidson, 581 F.3d at 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007). However, the Board finds that this contention is not credible because it is expressly contradicted by the April 2004 and December 2004 Post-Deployment Health Assessments. Service connection for valvular heart disease is also not warranted on the basis of chronicity or continuity of symptomatology because it was not diagnosed during service or during the presumptive period. 38 C.F.R. § 3.303(b). The most probative evidence of record does not show that the Veteran's valvular heart disease was incurred during or as a result of her service. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issue is denied. ORDER Service connection for hypertension is denied. Service connection for valvular heart disease is denied. REMAND In its May 2012 remand, the Board explained that the Veteran's service treatment records showed that the Veteran reported a history of ulcers when she was first seen for gastrointestinal complaints in service in September 2003. In-service clinicians diagnosed her with gastroesophageal reflux disease (GERD) in December 2003, and with probable cholelithiasis in September 2003. She was prescribed Prevacid. Additionally, the Veteran's post-service records include diagnoses by VA clinicians of peptic ulcer disease in December 2004 and January 2007, but the basis for that conclusion is unclear. VA clinicians also diagnosed the Veteran with GERD in April 2004 and January 2008. Consequently, the Board found that an examination was warranted. The Board finds that the June 2012 examination report is inadequate. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (the Board must reject medical opinions that are based on incorrect facts). Specifically, the examiner opined that "There is no evidence that the Veteran was diagnosed with a gastrointestinal disorder from February 2003 to April, 2004." This appears to be inconsistent with the record. The examiner also found that there was no evidence of GERD, peptic ulcer disease, or gallbladder disease, but failed to explain why the previous entries reflecting such disorders were in error, or, alternatively, how those disorders had resolved. Consequently, this issue is returned to the AOJ in order to schedule the Veteran for a new examination and opinion consistent with the facts described above. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated her for her gastrointestinal disorders since service. Thereafter, any identified records should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be given an opportunity to identify any healthcare provider who treated her for her gastrointestinal disorder since service. After securing any necessary authorization from her, obtain all identified treatment records which are not already of record. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Regardless of the response, obtain records pertaining to any treatment the Veteran received for gastrointestinal disorders from all treating VA facilities since June 2012. 2. After obtaining the records described above, the Veteran should be afforded a VA examination to determine the etiology and, if feasible, date of onset of any identified gastrointestinal disorder(s). All indicated tests and studies are to be performed. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. The examiner should respond to the following: a) Does the Veteran have a gastrointestinal disorder at present? If so, is it at least as likely as not that any identified disorder was first manifested in service or is otherwise related to her service from February 2003 to April 2004? b) If any identified gastrointestinal disorder pre-existed the Veteran's service from February 2003 to April 2004, was there an increase in the underlying pathology during that service, and, if so, was this permanent and was it due to the natural progress of the disorder? c) The Veteran was assessed in service to have probable cholelithiasis in September 2003, and to have GERD in December 2003. VA clinicians assessed the Veteran to have GERD in April 2004 (during service) and January 2008 (after service). VA clinicians also assessed the Veteran to have peptic ulcer disease in December 2004 and January 2007. If the examiner finds that any of those diagnoses were in error, then he should provide a medical reason for that finding. Additionally, if the examiner finds that the Veteran does not currently have one or more of those conditions, he should explain how each such condition had resolved. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs