Citation Nr: 1306477 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 05-18 505 ) 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 disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from August 1956 until his retirement in October 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for hypertension. This case has been before the Board on four previous occasions, most recently in July 2012, and was remanded each time for additional development of the record. The case is again before the Board for appellate consideration. The issue of service connection for ischemic heart disease has been raised by the record, 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. FINDINGS OF FACT 1. The Veteran has been granted service connection for post-traumatic stress disorder (PTSD), evaluated as 30 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; and for tinnitus, evaluated as 10 percent disabling. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has hypertension that is related to service, exposure to Agent Orange, or a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service; may not be presumed to have been so incurred or aggravated; and is not proximately due to or the result of, or chronically aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). By letters dated August 2003, September 2004, and January and December 2008, the RO provided notice to the Veteran regarding what information and evidence were needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The December 2008 letter advised the Veteran of how the VA assigns a disability rating and an effective date, and the type of evidence which impacts such. Duty to Assist The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private and VA medical records, the reports of VA examinations, and the testimony of the Veteran at a hearing before the undersigned. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA examinations were conducted, and opinions regarding the etiology of the Veteran's hypertension have been obtained. The VA opinions were rendered by medical professionals who clinically evaluated the Veteran, and/or reviewed the claims folder, and provided a factual foundation for the conclusions that were reached. Therefore, the Board finds that the opinions are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As discussed above, the appellant was notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and providing testimony. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). Where a veteran served 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA amended 38 C.F.R. § 3.310, the regulation concerning secondary service connection. The intent was to conform the regulation to Allen v. Brown, 7 Vet. App. 439 (1995), the United States Court of Appeals for Veterans Claims decision that clarified the circumstances under which a veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." The former paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era (during the period beginning on January 9, 1962, and ending on May 7, 1975) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (2007). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a veteran may not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a nonpresumptive direct-incurrence basis. In order to prevail on the issue of service connection on a direct-incurrence basis there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Service connection is in effect for PTSD, evaluated as 30 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; and for tinnitus, evaluated as 10 percent disabling. The service treatment records disclose the Veteran was seen for a cough and sore throat in December 1975. Blood pressure was 140/80. On a report of medical history in August 1976, the Veteran denied having high blood pressure. Blood pressure was 120/70. He complained of ankle swelling in October 1976. Blood pressure was 150/62. On examination in May 1977, blood pressure was 130/92. Service department medical records disclose the Veteran was seen in March 1997 and blood pressure was 158/94. Private medical records disclose the Veteran underwent stress testing in May 2003, and hypertension was listed as an indication for the test. A private physician reported in February 2004 that he was treating the Veteran for hypertension. The Veteran was afforded a VA examination in May 2004. He related hypertension had been going on for approximately 20 years and that he had been on medication for it. He apparently had been started on a new medication for heart protection after being diagnosed with diabetes. The examiner commented that since hypertension preceded his diagnosis of diabetes by approximately 20 years, the Veteran's hypertension was essential in nature and not secondary to diabetes. The Veteran was again examined by the VA in July 2009. The claims folder and medical records were reviewed. The Veteran asserted he had been diagnosed with hypertension in the 1980's. He maintained his private physician told him that his blood pressure had been aggravated by diabetes mellitus. The diagnosis was hypertension. The examiner opined it was less likely as not that the Veteran's hypertension was caused by, a result of, or had been aggravated by diabetes mellitus, Type 2 beyond the normal progression of the condition. She added that based on a review of the medical records, the Veteran's history, a physical examination and laboratory testing, there was no medical evidence that diabetes mellitus caused or aggravated his hypertension. She noted hypertension was diagnosed many years prior to diabetes. In June 2010, a VA medical provider reviewed the claims folder and medical records. She concluded the Veteran's hypertension was not caused by or aggravated by service, to include exposure to Agent Orange. She observed the records were silent with respect to a diagnosis or treatment for hypertension in service, or in close proximity thereto. She also stated hypertension was not a presumptive condition due to Agent Orange exposure, and medical literature did not support such a causal connection. On VA examination in February 2011, the examiner stated she reviewed the claims folder and medical records. She specifically noted the in-service blood pressure readings cited above. The Veteran asserted hypertension had its onset in service, but alleged that Marines do not go to the doctor. He maintains he would get light-headed, but that he did not complain. He related he came to Florida in 2002, and when he was told he had diabetes mellitus, he was also advised that he had hypertension. The diagnosis was hypertension. The examiner commented it was less likely as not that hypertension was manifested in service or within one year thereafter, or that it was otherwise related to service. She noted no other cardiovascular-renal disorder was diagnosed. Her rationale was predicated on a review of medical literature, the review of the medical records and clinical experience. She indicated there were three documented elevated blood pressure readings in service, and that two of them were at times of a medical visit for an acute condition. She stated it was not unexpected that an individual with no diagnosis of hypertension to respond to an acute stressful or painful medical situation with elevated blood pressure. This does not indicate the diagnosis of hypertension. She added the elevations were mild and not thought by the examiner in service to be indicative of hypertension requiring a three to five day check. While the Veteran had mildly elevated diastolic blood pressure on retirement, it was again not thought to be sufficiently significant to warrant a three or five day check. The examiner observed that one mildly elevated blood pressure reading does not make a diagnosis of hypertension. She pointed out that hypertension was never diagnosed or even entertained as a diagnosis while the Veteran was on active duty. She related that a diagnosis of hypertension is not made by one isolated reading. Rather, for the diagnosis of hypertension, three readings should be taken at least one week apart. There was no objective evidence of the onset of a diagnosis of essential hypertension during active service, and there were no elevated blood pressure readings or a diagnosis of hypertension within two years of service. She insisted there was no objective documentation of hypertension until 2003. There were no blood pressure readings within the year of the diagnosis of diabetes mellitus to establish objective evidence of aggravation of hypertension by diabetes. The Veteran was again examined by the VA in August 2012. He claimed hypertension had its onset in service but that it was not treated. He maintained that medication was not started until more than 10 years ago, but felt he had all the symptoms of hypertension during service. The examiner noted she reviewed the claims folder and medical records. She concluded that the Veteran's hypertension was less likely as not caused or aggravated by his PTSD. She observed that PTSD and its treatment do not cause hypertension. She acknowledged that blood pressure might be elevated during an episode of distress related to PTSD or an acute exacerbation of the disorder, but when the distress was relieved, the blood pressure returned to normal. There was no permanent blood pressure elevation or diagnosis of hypertension due to PTSD. The examiner noted that hypertension is very common and generally considered to be "essential," that is, it has no specific cause. There was nothing objective in the Veteran's medical record that would indicate that PTSD has chronicically worsened or has permanently increased the severity of his hypertension. Although an additional blood pressure medication was added in 2009, the Veteran's PTSD, while active, does not appear to have been unstable at that time. From the history, the examiner indicated the new medication was added in 2009 for ischemic heart disease, and not for control of the Veteran's blood pressure. She pointed out that it was not unexpected for systolic pressure, in particular, to rise with age, but observed that hypertension and anti-hypertensive medications had been unchanged for the previous three years. The Veteran has advanced several theories in support of his claim for service connection for hypertension. He has variously argued it had its onset in service, it is related to his exposure to Agent Orange, or that it is related to his service-connected diabetes mellitus or PTSD. The evidence demonstrates that hypertension was first manifested many years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) ("evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). The Veteran alleges it is attributable to his exposure to Agent Orange. There is no basis in the record for this claim. He has not submitted any objective evidence establishing such a relationship. There is no indication in the record that the Veteran's hypertension is associated with Agent Orange. In this regard, the Board emphasizes that a VA medical provider specifically stated in June 2010 that the medical literature did not provide any support for the proposition that hypertension is related to exposure to Agent Orange. With respect to the claim that hypertension was present during service or within one year following the Veteran's retirement from service, the Board concedes the service treatment records show a few elevated blood pressure readings, including on an examination about five months prior to his discharge. This was recognized by the VA physician in February 2011. She found it significant that the medical providers in service did not order a recheck of the Veteran's blood pressure, and noted that for hypertension to be diagnosed, several readings should be taken over an extended period. The fact this was not done is evidence against the claim that hypertension was present in service. The VA physician concluded that hypertension was not present during service or within one year after the Veteran's retirement from service. The Board notes the Veteran has provided conflicting statements regarding the onset of hypertension. When he was examined by the VA in May 2004, he stated hypertension had been present for about 20 years. Yet, he claimed at the time of the VA examination in February 2011 that he first learned he had hypertension in 2002. During the hearing before the undersigned, he testified hypertension was diagnosed for the first time in 2003. Such incompatible statements undermine his credibility. The Veteran has also asserted hypertension was either caused or aggravated by his service-connected diabetes mellitus or PTSD. With respect to diabetes, the Board observes that two VA examiners opined that the Veteran's hypertension was present prior to his diagnosis of diabetes mellitus and, therefore, there is no basis on which it may be concluded that there is a causal relationship. In addition, the Board notes the VA examiner opined in July 2009 that there was no medical evidence diabetes mellitus had aggravated hypertension. The Board concedes the Veteran stated his physician so advised him. He has not provided any documentation for this opinion, and the VA examiner's opinion in July 2009 was predicated on a review of the record, and provided a rationale for her opinion that diabetes mellitus had not aggravated the Veteran's hypertension. Thus, this opinion is of greater probative value than the Veteran's mere description of what his private physician told him. Finally, the Veteran alleges that his PTSD caused or aggravated hypertension. This was addressed on the August 2012 VA examination. The examiner conceded that blood pressure might become elevated during an episode of distress associated with PTSD, but it did not result in the permanent increase in the severity of hypertension. The Veteran's representative argues that this is an explicit concession that the disabilities are related. In fact, the examiner specifically stated that once the distress is alleviated, the blood pressure returns to its normal level. Clearly, this does not demonstrate aggravation of the underlying condition. The Board concludes, therefore, that the medical findings of record are of greater probative value than the Veteran's allegations regarding the etiology of hypertension. Accordingly, the Board finds the preponderance of the evidence is against the claim for service connection for hypertension. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for hypertension, to include on a secondary basis, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs