Citation Nr: 1306233 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 02-12 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney At Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had honorable active service from January 1953 to January 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2000 decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). This case was most previously before the Board in July 2010. The July 2010 Board decision reopened the Veteran's hypertension claim and remanded the case for additional development. 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). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, hypertension had its onset in service or within one year of service discharge. CONCLUSION OF LAW Service connection for hypertension is warranted. 38 U.S.C.A. § 1110; (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable decision to grant the Veteran's claim, any deficiency as to VA's duties to notify and assist pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) is rendered moot. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection for certain specified chronic diseases, such as hypertension, may be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At the outset, the evidence of record confirms that the Veteran has a current diagnosis of essential hypertension. This diagnosis has been established since at least 1986. See VA examination, October 1986. The earliest post-service medical record associated with the claims file is a March 1968 private hospital record noting an impression of severe trauma to the left hand and possible hypertension. Thus, the ultimate disposition of this appeal rests upon whether the condition is related to military service. The Veteran's service treatment records are unavailable. However, appropriate efforts were made to corroborate the Veteran's account of his in-service symptoms, as required by 38 U.S.C.A. § 7104(d)(1). Such records were presumed to be destroyed in the 1973 fire at the National Personnel Records Center. A search of daily reports for the Veteran's unit and inpatient reports of the Fort Hood Army Hospital disclosed, however, that the Veteran was hospitalized from June 22 to July 2, 1953, but no diagnosis or injury was recorded. The patient roster reflected that he was admitted to the G.U. service. The Veteran has indicated (November 1998 RO hearing transcript, page 4) that his 1953 hospitalization was related to swelling in his groin and genital area. No relevant in-service medical evidence has been associated with the claims folder. The only evidence pertaining to in-service treatment are the numerous statements provided by the Veteran indicating that he was treated in-service for hypertension and that the onset of such symptoms had their onset during service. Specifically, the Veteran asserts that he received medication for hypertension when he was hospitalized in 1953, and that a doctor told him his blood pressure was high. He related experiencing symptoms of dizziness at that time, which the doctors had told him was a symptom of his high blood pressure. At a November 1998 RO hearing the Veteran essentially indicated (November 1998 RO hearing transcript, pages 5-6) that subsequent to his 1953 inservice hospitalization he had to take a pill daily to treat his high blood pressure. The absence of service treatment records in this case was highlighted in a February 2012 addendum to a September 2011 VA hypertension examination; the examiner stated, in pertinent part, as follows There are no service medical records regarding military, therefore I cannot make an opinion whether [the Veteran's] hypertension is related to actual [military service]. The Veteran provides a competent and highly credible account of symptomatology related to hypertension and treatment, including in- and post-service. 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"). He has reported a generally consistent of how his hypertension was initially identified during a hospitalization of a genitourinary system problem, that he was given a pill to bring his blood pressure under control, and that he took that medication until he was released from service. He has also been consistent in his discussion of his in- and post-service symptomatology, to include being denied employment shortly after service due to hypertension, experiencing occasional instances of dizziness, and not seeking treatment for many years thereafter. Moreover, after it became apparent that the Veteran's service treatment records were unavailable, the Veteran undertook extra efforts to obtain the clinical records specifically relating to his 1953 hospitalization. While details are not abundant, information has been obtained that such a hospitalization did occur. Further, had the records been obtained, they most likely would have been significantly decisive in proving or disproving the Veteran's claim. The efforts taken by the Veteran to obtain the 1953 records, tends to, in the Board 's view, add to his general overall credibility in this case. Additionally, while the Veteran did not appear before the undersigned, his testimony at the July 2003 Board hearing and November 1998 RO hearing, including the consistency of his statements, further bolster his account of in- and post-service hypertension-related treatment and symptomatology, including in-service onset and continuously since separation. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding, that "[i]n the case of oral testimony, a hearing officer may properly consider the demeanor of the witness."). These factors together make the Veteran's account as to the aforementioned matters competent, credible and highly probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (VA must consider lay evidence and give it the weight it concludes is appropriate). While there is no medical positive nexus opinion, this is not fatal to the Veteran's claim, as in the present circumstance lay evidence may service as basis to establish the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Savage v. Gober, 10 Vet. App. 488, 496 (1997) (emphasizing that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology"). In this regard, lay evidence can be competent and sufficient o establish a diagnosis of a condition when (1) a 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. Jandreau, supra. Moreover, as noted above, pursuant to 38 C.F.R. § 3.303(b), the second and third elements of service connection may be established by demonstrating a continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. at 307 . In making this determination, the Board acknowledges that the Veteran separated from military service in January 1955 and the first medical evidence of any relevant treatment is a treatment record generated in 1968, which is approximately 13 years after this date. He does not report prior treatment. He explains that he did not have the financial resources to seek care in the years immediately following service. Nonetheless, as discussed above, he has provided a competent and credible account of his in-service treatment for high blood pressure and post-service symptomatology, including continuity since separation (being denied employment and experiencing occasional dizzy spells). See Jandreau and Buchanan. The Court has made clear that the absence of medical evidence documenting relevant treatment is a factor properly considered when considering a claim of this nature. In the present case, however, through no fault on his behalf, the Veteran's service treatment records, are unavailable. Resolving all reasonable doubt in his favor, the absence of such records does not provide probative evidence against the Veteran's competent and credible account of having hypertension symptomatology continuous since separation. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (VA must consider "all of the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant fact," when considering the probative value to assign evidence of a prolonged period without medical complaint.). In sum, the competent evidence of record sufficiently establishes the Veteran's in-service treatment for hypertension and onset of symptomatology (e.g., dizziness). The Veteran also provides a competent and credible account of continuously experiencing symptomatology related to hypertension since separation. See Davidson, 581 F.3d at 1316. Further, the medical evidence of record confirms his current diagnosis of hypertension. Based on the foregoing, the Board finds that the lay evidence of record is competent and credible evidence that supports the later diagnosis of hypertension. See Barr. Thus, the Board finds that service connection is warranted for hypertension. ORDER Service connection for hypertension is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs