Citation Nr: 1305899 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 08-30 113A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: N. Albert Bacharach, Jr., Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to March 1959. This matter originally came on appeal before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). In December 2010 and March 2012 decisions, the Board remanded the issue of entitlement to service connection for hypertension, for further development, and this issue has since returned to the Board. In support of his claim, the Veteran testified at a hearing at the RO in June 2010 before the undersigned Veterans Law Judge of the Board (VLJ). Relevant to these proceedings, 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) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above 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. At this hearing, the Veteran volunteered his treatment history. The VLJ and the Veteran's attorney asked specific questions, directed at identifying the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. In particular, the VLJ raised the question regarding the missing element, a medical nexus. She specifically asked what physician had indicated that the pain from his service-connected disabilities aggravated his nonservice-connected hypertension. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Then, this case was remanded to procure this evidence, mainly a medical nexus opinion. Moreover, neither the Veteran nor his attorney have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the element necessary to substantiate the 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) and that the Board can adjudicate the claim based on the current record. Review of VA's Compensation and Pension Record Interchange (CAPRI) system via "Virtual VA" shows that records dated most recently in November 2012 from the N. Florida/S. Georgia VA medical treatment location are included. A remand, pursuant to 38 C.F.R. § 20.1304 (2012) is not necessary, however, as the evidence simply shows that the Veteran is receiving ongoing treatment for his various disabilities to include pain management. This evidence does not refer to or address the etiology of his hypertension. This evidence is duplicative of the evidence that is already of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDING OF FACT The preponderance of the competent medical and other evidence of record reflects that the Veteran's hypertension was not caused or aggravated by his service or service-connected disabilities. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, may not be presumed to have been so incurred or aggravated, and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 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) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 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 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a pre-adjudication letter dated in January 2008, the RO informed the Veteran of its duty to assist him in substantiating his claim for service connection under the VCAA, and the effect of this duty upon the claim. This letter informed him of how disability ratings and effective dates are assigned, if service connection were to be granted. See Dingess v. Nicholson, supra. The Veteran's appeal was most recently readjudicated in November 2012. Of further significance here is the fact that neither the Veteran, nor his representative, have asserted any deficiencies in the notice provided to the Veteran with regard to the claim. The Veteran has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. His in-service and post-service treatment reports are of record and VA examinations were obtained in May 2011 and October 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that together the medical opinions obtained in this case are more than adequate, as together they reflect a full review of all medical evidence of record, are supported by sufficient detail, and refer to specific documents and medical history as well as the Veteran's service history to support the conclusions reached, and where necessary, address service connection on both a secondary and aggravation basis, as required by 38 C.F.R. § 3.310. As well, the Board finds that the remand instructions were substantially complied with as the necessary information was provided in order to decide the claim. See, e.g., D'Aries v. Peake, 22 Vet. App. 97, 104-06 (2008) (holding that not strict, but substantial compliance with the terms of a Board's engagement letter is required) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial compliance as applied to remand instructions).) Therefore, VA has properly assisted the Veteran in obtaining any relevant evidence. Thus, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Service Connection for Hypertension In this case, the Veteran is seeking service connection on a secondary basis for hypertension that he believes was caused, or made worse, by his service-connected disabilities. He claims that his service-connected orthopedic disabilities cause constant pain which chronically elevates his hypertension. The Board notes that service connection is currently in effect for degenerative joint disease (DJD) of the left knee, rated as 20 percent disabling; DJD of the left ankle, rated as 20 percent disabling; DJD of the right ankle, rated as 20 percent disabling; bilateral pes planus, rated as 10 percent disabling; DJD of the right knee, rated as 10 percent disabling; lumbar strain, rated as 10 percent disabling; sacroiliac syndrome of the left hip, rated as 10 percent disabling; sacroiliac syndrome of the right hip, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensably disabling. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may 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 addition, certain chronic diseases, including hypertension, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. Thus, in order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). The Veteran's service treatment records (STRs) show that his blood pressure was 120/76 at the military enlistment medical examination conducted in March 1955. He began serving on active duty that month. His blood pressure was 132/78 during his subsequent military separation examination that was conducted in March 1959. The Board notes that there is no evidence in service of persistently elevated blood pressure indicative or even suggestive of hypertension. For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, note (1) (2012). Also, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. Private treatment records dated in August 1979 show that the Veteran reported a history of hypertension. At that time he was taking anti-hypertension medication. Since then, both private and VA treatment records document his history and continuing treatment for hypertension. The Veteran testified at a June 2010 hearing. He stated that the pain associated with his multiple service-connected disabilities aggravates his hypertension. He further stated that several doctors have told him that his pain elevates his blood pressure. When questioned as to the identity of the physicians that have offered this opinion, the Veteran failed to provide a name. He went on to add that his pain is continuous and is getting worse. The Veteran underwent a VA examination in May 2011. The claims file was reviewed by the examiner, who noted that there was no evidence of hypertension during military service. He stated that the Veteran conceded that his high blood pressure started some time after his military service. Furthermore, the medical records do not show the onset of hypertension. The clinician noted that VA records dated in 1999, relate that he was taking the prescribed medications Terazosin and hydrochlorothiazide. Since then, he has had three additional classes of antihypertensive drugs added to his medication regime. In fact, the physician found that in reviewing the record, the Veteran's hypertension was consistent with natural progress of elevated blood pressure that is seen when one ages. While acknowledging that acute episodes of pain are clearly capable of causing a transient elevation in blood pressure, the physician also noted that such a connection between chronic pain and chronic elevation of the blood pressure was not well established. As such, the doctor concluded that the Veteran's hypertension was less likely than not caused by his service-connected conditions. According to 38 C.F.R. § 3.310(a) and (b) and the holding in Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc), a medical nexus opinion addressing secondary service connection must consider both the possibility of causation and aggravation. The Board determined that while the physician commented on the issue of causation, he had not sufficiently addressed this issue of aggravation. In light of this, the Board remanded this case and requested additional medical comment. A VA nurse practitioner reviewed the Veteran's claims file in October 2012. He noted that there were many risk factors for high blood pressure including age, race, family history, obesity, physical inactivity, use of tobacco, second hand smoke, sodium intake, lack of potassium, lack of Vitamin D, use of alcohol, and stress, as well as chronic disabilities including high cholesterol, kidney disease, and sleep apnea. The examiner noted that the Veteran met many of these risk factors. He concluded that there was no objective evidence in the medical literature that pain causes or permanently aggravates a hypertensive condition. This clinician concluded that hypertension was not caused or aggravated by his service-connected conditions. In reviewing the record including VA and private treatment, the Veteran has been treated for a variety of medical related issues. His family history reportedly included coronary artery disease (CAD) and hypertension, and his cardiac risk factors included tobacco use, his age, sex, hypertension and HDL. An August 2008 VA hospital problem list included obstructive sleep apnea, low back pain, ear problems, cerebrovascular accident, primary hyperparathyroidism, epidermal cyst, benign neoplastic bladder, bronchitis, diverticulosis, diabetes, overweight, hyperlipidemia, arthritis, hypertension, and skin disorder. As noted above, service connection has also been established for a number of disabilities. However, none of these records purports to relate the Veteran's hypertension to either his service or to a service-connected disability. Based on the evidence of record, the Board finds that service connection for hypertension is not warranted. The overall weight of the evidence is against a finding that it was incurred in or otherwise related to service. Service treatment records are negative for any complaints, treatment, or diagnoses related to hypertension. Moreover, the Veteran reported that his hypertension did not begin until after service. The medical records do not show any evidence related to hypertension until 1979, some 20 years after service discharge. Collectively, these findings indicate that the Veteran's hypertension was not directly related to service. Moreover, there is no competent medical opinion linking the Veteran's currently diagnosed conditions to service or service-connected disabilities. These two VA compensation examiners' opinions constitute the only opinions addressing the alleged relationship between the Veteran's hypertension and his military service, including secondarily by way of his service-connected disabilities. And, both opinions are unfavorable to his claim. A preponderance of the evidence is therefore, unfavorable in this case and thus, not in relative equipoise (meaning about evenly balanced for and against his claim). The Board notes that the Veteran has consistently argued that pain associated with his orthopedic conditions has exacerbated his hypertension. He has also stated that this rise in blood pressure readings with pain has been shown since service when he received treatment. He reported that when he received treatment during service, he noted that there were spikes in his blood pressure readings (although this is not documented by objective evidence in the STRs). To the extent his unsubstantiated lay assertions are offered to establish the required relationship between his hypertensive disorder and service or service-connected disabilities, they are insufficient to do this. This is not the type of situation when mere lay evidence will suffice to support the claim; rather, there also has to be medical evidence supporting the claim, which there simply is not. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). And as he is not shown to be other than a layperson without the appropriate medical training and expertise, he is not competent to render a probative (i.e., persuasive), meaning competent and credible, opinion on this medical matter. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Moreover, to the extent that the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) can be interpreted to enable a lay person to speak on etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg, the question of causation here involves a more complex relationship that the Veteran is not competent to address. In regard to his testimony that he has been told by physicians that his pain has contributed to his hypertension, this has not been confirmed by the records of either private or VA medical providers. The Court has held that hearsay medical evidence, as transmitted by a lay person, is not sufficient to support a claim of service connection. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (The connection between what a physician said and the layman's account of what the physician purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim for service connection). See also Kirwin v. Brown, 8 Vet. App. 148, 153 (1995). Hence, his lay assertions in this regard have no probative value. See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease or rheumatic fever). For these reasons and bases, the preponderance of the evidence is against this claim of entitlement to service connection for hypertension on either on a direct, presumptive, or secondary basis. Since the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs