Citation Nr: 1306355 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-39 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to July 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in February 2010, a statement of the case was issued in September 2010, and a substantive appeal was received in September 2010. The Veteran presented testimony at a Board hearing in October 2010. A transcript of the hearing is associated with the Veteran's claims folder. FINDING OF FACT The Veteran has current hypertension and hypertension was demonstrated during the Veteran's active duty service. CONCLUSION OF LAW Hypertension was incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Service Connection Service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is shown in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, no matter how remote from service, are service connected. 38 C.F.R. § 3.303(b). Under 3.303(b) a chronic disease shown in service and at any time thereafter is service connected without the need to show a nexus to service. Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008). For evaluation purposes, VA has defined hypertension to mean that the diastolic blood pressure is predominantly 90mm or greater, and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). The Veteran's service treatment records show numerous elevated blood pressure readings, as well as numerous blood pressure readings that were within normal limits. The relevant readings are as follows: March 1985 - 138/86 October 1993 - 137/93 June 1987 - 138/84 December 1993 - 116/80 August 1984 - 138/84 December 1993 - 146/90 January 1990 - 124/70 March 1994 (separation exam) - March 1990 - 138/86 134/90, 134/90, 132/84 March 1990 - 148/96 March 1994 - 124/72 April 1990 - 148/96 Undated - 138/88 March 1994 - 128/88 January 1991 - 118/72 January 1992 - 136/82 5-day trial April 1994 October 1992 - 121/97 139/103 139/103 November 1992 - 145/89 134/90 142/94 December 1992 - 137/85 134/82 135/83 January 1993 - 132/78 122/90 137/89 January 1993 - 143/103 129/81 132/88 February 1993 - 131/93 August 1993 - 149/81 August 1993 - 159/91 5-day trial September 1993 137/89 129/97 128/92 125/89 132/88 125/93 142/86 140/96 143/99 150/94 The above notations show that the majority of diastolic readings were in excess of 90 during 1993 and 1994. The Veteran had two elevated diastolic readings on September 8, 1993, at the discharge examination in March 1994, and during the 5 day trial on April 12 and April 13, 1994. During the April 1994 trial, the assessments included rule out hypertension. On April 18, 1994, the Veteran's average blood pressures during the 5 day trial were reported as 134/91 on the right and 134.6/89 on the left. He was described as normotensive. The Veteran completed a Report of Medical History in March 1994 (in conjunction with his separation examination). When asked if he ever had high or low blood pressure, he initially checked the box for "Don't Know." However, he then changed the answer to "No." During an unrelated evaluation in May 1994, the Veteran's blood pressures were 133/97 and 128/88. The Veteran underwent a VA examination (in conjunction with unrelated claims) in December 1994. His blood pressure reading at the examination was 134/76. A May 1995 outpatient treatment record reflects a blood pressure reading of 117/89. The next post service blood pressure reading is dated February 2000, and measured 155/97. The record reflects that the Veteran's blood pressure was checked annually in conjunction with prostate examinations. The readings were elevated in February 2002, February 2003, February 2004, and February 2005. The Veteran was diagnosed with hypertension in March 2005. The Veteran submitted a February 2010 correspondence from S.A. (a physician's assistant in the U.S. Air Force). S.A. stated that the Veteran was a patient and that a recent record review showed that the Veteran had untreated high blood pressure while on active military service. He noted that there were multiple elevated readings in service. He requested that the Veteran's medical records be re-evaluated for undiagnosed hypertension during active duty service. The Veteran underwent a VA examination in October 2010. The examiner reviewed the claims file in conjunction with the examination. The examiner noted that the Veteran was "running borderline blood pressure readings" in 1994, prior to discharge from service. He also noted numerous high blood pressure readings between 2000-2007; as well as a confirmed diagnosis of hypertension. Upon examination, the Veteran's blood pressure was measured as 152/91. The examiner diagnosed hypertension; but stated that hypertensive heart disease was not present. The examiner opined that the Veteran's current hypertension was less likely than not related to service. His rationale was that the Veteran underwent two 5-day blood pressure assessments near the end of his service. He was determined to be normotensive in April 1994. He further stated that using "the most liberal criteria" (allowing all dates from both trials to be used in one pool) the Veteran did not meet the criteria that require a blood pressure reading of 140/90 measured twice on three separate days. He wrote that the only day that the Veteran met those criteria was on September 8, 1993. Insofar as meeting the criteria for isolated systolic hypertension greater than 160, the Veteran did not meet these criteria during either 5-day trial. For isolated diastolic hypertension greater than 100, he met the criteria on April 12, 1994. Finally, the examiner found that the Veteran would not be entitled to service connection on a presumptive basis because the evidence does not reflect hypertension to a compensable degree within one year of service. The examiner was unable to find any post service elevated blood pressure readings until 2000 (six years after service). At the Veteran's October 2011 Board hearing, he acknowledged that hypertension had not been diagnosed during service. However, he testified that he often had irregular blood pressure readings that were not treated. He stated that these readings occurred throughout service, but mostly at the end of service (probably the late 1980s). He also testified that he has been told by VA doctors that his hypertension should have been diagnosed during service. Finally, the examiner found that the Veteran would not be entitled to service connection on a presumptive basis because the evidence does not reflect hypertension to a compensable degree within one year of service. The examiner was unable to find any post service elevated blood pressure readings until 2000 (six years after service). Analysis The record documents elevated blood pressure readings since at least 2005 and a diagnosis of hypertension on the VA examination. As such, a current disability is demonstrated. This case turns on the question of whether hypertension was shown in service. The United States Court of Veterans Appeals (Court) has applied VA's definitions of hypertension in Diagnostic Code 7101 to determine whether hypertension is demonstrated. See Cox v. Brown, 5 Vet. App. 95, 99 (1993); Rabidueau v. Derwinski, 2 Vet. App. 141, 143 (1992). On their face, the service treatment records would seem to show hypertension as defined in Diagnostic Code 7101, Note 1. Diastolic readings were predominantly in excess of 90 during the last two years of the Veteran's service and two readings were elevated on three separate occasions during that period. In addition, an Air Force Physicians Assistant reviewed this record and found that it showed in-service hypertension. The VA examiner essentially concluded that the record did not document hypertension in service, but applied a definition of hypertension that was different from that in Diagnostic Code 7101. In addition to diastolic readings of 90 or more, the examiner required that the systolic readings be 140 or more. Because the examiner's opinion is based on an inaccurate premise, it is of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the record contains a gap of approximately 6 years between the Veteran's separation from service and the first documented post-service elevated blood pressure reading; the evidence shows that hypertension was demonstrated in service and at some time thereafter. Under applicable regulations, service connection is conceded in such circumstances without the need to show a nexus. 38 C.F.R. § 3.303(b). The element for the grant of service connection for hypertension have been demonstrated. The evidence is in favor of the grant of service connection. 38U.S.C.A. § 5107(b). ORDER Service connection for hypertension is granted. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs