Citation Nr: 1307142 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 07-05 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected disease or injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from June 1965 to May 1968, and served in the Colorado Army National Guard between 1974 and 1992, including periods of active duty training (ACDUTRA) and/or inactive duty training (INACDUTRA). These matters initially came before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a January 2006 rating decision of the VA Regional Office (RO) in Denver, Colorado. In that decision, the RO denied entitlement to service connection for hypertension, among other disabilities. In November 2008, the Veteran testified at a hearing before the undersigned using video-conferencing technology; a transcript of that hearing is of record. In December 2008, the Board denied entitlement to service connection for hypertension, coronary artery disease (CAD), erectile dysfunction (ED) and major depressive disorder (MDD). The Board also remanded to the RO, via the Appeals Management Center (AMC), the claims for entitlement to service connection for sleep apnea, narcolepsy and varicose veins, for further development. In March 2010, United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion by counsel for VA and the Veteran to vacate the Board's December 2008 decision denying entitlement to service connection for hypertension, CAD, ED, and MDD, and remanded these claims to the Board. In December 2010, the Board denied the claims for entitlement to service connection for varicose veins, granted a claim for entitlement to service connection for ischemic heart disease, and remanded the claims for entitlement to service connection for hypertension, ED, MDD, sleep apnea, and narcolepsy for additional development. In a January 2011 rating decision, the RO awarded service connection for CAD. In March 2012, the RO granted entitlement to service connection for sleep apnea, and in a September 2012 decision, the Board denied the Veteran's claims of entitlement to service connection for ED, MDD, and narcolepsy, while remanding the claim listed above. As such, the only claim remaining on appeal before the Board is the claim of entitlement to service connection for hypertension. For the reasons stated below, the RO/AMC complied with the Board's remand instructions with regard to the claim of entitlement to service connection for hypertension. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Hypertension was not manifest in service or within one year of separation, and is unrelated to service, ACDUTRA, or INACDUTRA. 2. Hypertension was not caused or aggravated by service-connected disease or injury. CONCLUSIONS OF LAW 1. Hypertension was not incurred or aggravated by service, ACDUTRA, or INACDUTRA, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 101(21), (24), 106, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Hypertension is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran 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, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In July and October 2005 pre-rating letters, the RO notified the Veteran of the evidence needed to substantiate the claims for entitlement to service connection for hypertension. The letters included discussion of entitlement on a direct, secondary, and presumptive basis. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the July and October 2005 letters complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice in a September 2009 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified VA and private treatment records for which the appropriate authorization to release information was given. In its December 2010 remand, the Board directed that the Veteran should be sent a letter asking him to identify any pertinent medical treatment not already of record, which was accomplished in December 2010. The Veteran was also scheduled to undergo a VA examination to obtain an opinion as to whether his hypertension was related to service or diabetes mellitus. An examination was again requested in the September 2012 Board remand. In November 2012, the Veteran was afforded a VA examination, and the report complied with all of the Board's pertinent remand instructions. Therefore, the RO/AMC substantially complied with the remand instructions. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Finally in this regard, during the November 2008 Board hearing, the undersigned explained the issue on appeal and suggested the submission of evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim of entitlement to service connection for hypertension is thus ready to be considered on the merits. Analysis As an initial matter, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disability for which he claims entitlement to service connection is the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection for hypertension may also be granted if manifest to a compensable degree within one year of active service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. § 3.307, 3.309 (2012). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Hyperstension is subject to 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309. Service connection may also be granted for a disease first 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). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). This latter provision was added as part of an amendment intended conform VA regulations to Allen v. Brown, 7 Vet. App. 439 (1995), and also limited the circumstances in which VA would concede aggravation. See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). As the new regulation, which took effect on October 10, 2006, after the Veteran filed his claims, is more restrictive, the former regulation is applicable. "Active military service" is defined by VA law and regulations. Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. National Guard service generally includes periods of ACDUTRA and/or INACDUTRA. ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23)(C); 38 C.F.R. § 3.6(d). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., the Veteran's period of active duty) does not obviate the need to establish that the claimant is also a "Veteran" for purposes of the period of ACDUTRA or INACDUTRA where the claim for benefits is premised on that periods of ACDUTRA OR INACDUTRA. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The record contains Army National Guard Annual Statements that appear to reflect some type of training in the years between 1974 and 1991, inclusive. The Board will address the issue of whether a claimed disability resulted from disease or injury incurred in or aggravated while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA where such a theory is raised by the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). The Veteran's service medical records are negative for any diagnosis, complaint, or abnormal finding pertaining to hypertension. On discharge from active duty in May 1968, the Veteran's vascular system was clinically normal. His blood pressure at that time was 140/80. No notation referable to the Veteran's vascular system was listed in the summary of defects and diagnoses. He was deemed to be qualified for separation. On enlistment examination for the National Guard in April 1974, the Veteran denied a history of high blood pressure. Examination revealed a normal vascular system. The Veteran's blood pressure was 130/80. The report of a periodic examination in January 1979 revealed a clinically normal vascular system. The Veteran denied any history of high blood pressure. His blood pressure was 118/76. On periodic examination in October 1983, the Veteran denied a history of high blood pressure. His blood pressure was 90/60. Clinical examination revealed a normal vascular system. On periodic examination in September 1987, the Veteran's vascular system was normal. His blood pressure was 124/82. The Veteran was determined to be qualified for retention. The report of a routine physical examination in November 1991 indicates that the Veteran's vascular system was noted to be abnormal. However, the examiner indicated that the notation referred to extensive varicosities in the lower extremities. At that time, the Veteran denied a history of high blood pressure. His blood pressure was 146/88. A June 2000 treatment note by V.D.R., M.D. indicates a diagnosis of early hypertension. The Veteran was started on medication. Subsequent private records note hypertension. In a May 2003 private treatment record, the Veteran reported a five or six year history of hypertension. With his January 2005 claim, the Veteran submitted a diabetes mellitus questionnaire. He stated that he had been diagnosed by his private physician with diabetes in 2003. He also indicated that he had been diagnosed with hypertension in 1993. On VA examination in December 2005, the Veteran denied a history of hypertension, but the examiner noted that medication management of hypertension began in June 2000. In a February 2007 letter, Dr. L. stated that the Veteran carried a diagnosis of hypertension in addition to diabetes mellitus. She indicated her belief that it was highly plausible that the Veteran developed hypertension in service, noting that he underwent high stress. During his November 2008 hearing, the Veteran testified that he was not sure if any of his medical providers had related his hypertension to his diabetes. In June 2011, the Veteran underwent VA examination. The examiner noted that the Veteran was asked multiple times for dates as to when he reported a given diagnosis was made, and his consistent answer was that he did not know. When pressed, the Veteran indicated that hypertension was probably diagnosed in the 1970s. Following examination, a diagnosis of hypertension was assessed. The presumed onset was in the 1960s or 1970s. It was currently treated under excellent control. The examiner opined that hypertension was not subject to, aggravated by, or caused by diabetes mellitus, since it antedated the appearance of diabetes mellitus type II by more than 30 years. There was also no evidence that the hypertension had become more difficult to manage or had end organ consequences, so there was no evidence of aggravation. In November 2012, the Veteran underwent VA examination. Active duty from June 1965 to May 1968 was noted along with service with the Colorado National Guard from 1974 to 1991. The Veteran stated that, during this time, he was only activated for one day during a blizzard in Denver in the 1980s. Otherwise, he served in the inactive reserves except for annual summer training exercises, usually lasting for two weeks. A review of the claims file showed that the Veteran was first diagnosed as having diabetes mellitus in 2002. A careful review of the claims file also led the examiner to find that there was no evidence of high blood pressure while the Veteran was on active duty or serving in the reserves. Multiple periodic examinations revealed normal blood pressures, including one taken in January 1991 for screening prior to a treadmill test. The examiner noted that such blood pressure readings are done with excellent and accurate testing measures. His blood pressure at that time was 128/84. His blood pressure response to exercise was also normal at that time. The first indication that the examiner could find of a diagnosis of hypertension is dated in June 2000. This appeared to be the first evidence of repeated blood pressures consistent with a diagnosis of high blood pressure, with the diagnosis being established and treatment initiated. Since then, the Veteran reported that he was maintained on high blood pressure medication with good control and no complications. Following examination, the examiner determined that hypertension was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner indicated that the initial diagnosis of hypertension in June 2000 predated the first diagnosis of diabetes mellitus. Importantly, given the history of an absence of abnormal microalbuminuria, serum creatinine, EGFR, and BUN, the essential hypertension was considered well-controlled and not caused or aggravated by diabetes mellitus. The examiner further explained that it has been well established that monitoring microalbuminuria was a very early sensitive indicator of first renal damage due to diabetes mellitus, and in the absence of abnormality in this test, it was much less likely than not that the Veteran had renal disease secondary to diabetes. For diabetes to directly cause or aggravate hypertension, it is generally understood that this is on the basis of renal damage from the diabetes identified by progressive microalbuminuria to later stages of gross and massive proteinuria. Finally, the examiner indicated that any assertion that the high blood pressure was directly related to active duty service or reserve duty service was not supported, as the very first evidence of its diagnosis made in June 2000 is long after active duty, which terminated in 1968, and his National Guard service, which terminated in approximately 1991. First, the Board finds that the weight of the evidence of record supports a finding that hypertension did not begin until approximately June 2000. There is some suggestion by the Veteran that it began in 1993 (as contended in his January 2005 claim) or in 1997 (reported as a five to six year history in May 2003). However, on all occasions when the Veteran has been tasked with reporting the timing of his diagnosis of hypertension, he has been unable to report such a date with any consistency. His report as to the onset of hypertension to medical professionals and in oral and written testimony has varied from the 1960s or 1970s to approximately 1997. The Veteran himself stated during the June 2011 VA examination that he did not know when it was diagnosed, as he did not normally pay attention to such dates. As such, on the matter of when hypertension was diagnosed or when high blood pressure was first shown, the Veteran is, by his own admission and based upon a review of the record, not a reliable historian. While the Veteran's private physician opined in a February 2007 written statement that it was highly plausible that the Veteran developed hypertension in service due to stress, this appears to be based upon a history provided by the Veteran, which has been found to be unreliable. In any case, it is clear that the Veteran's private physician either did not review the record or, if she did conduct such a review, did not provide any explanation as to why numerous post-service examination reports contained no notation of symptoms or diagnoses associated with hypertension if the Veteran developed this disorder during service. See Walker v. Shinseki, ----Fed. Cir. (2013). In fact, the recordings during recognized service were normotensive. See DC 7101 Note 1. Furthermore, the opinion provided by this physician is speculative and, as such, is afforded little probative weight. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Sklar v. Brown, 5 Vet. App. 140 (1993). As such, to the extent that the Veteran asserts that there is continuity of symptomatology associated with his hypertension since separation from service or that hypertension was diagnosed in service, the Board finds that any evidence suggesting such a history is not credible, because it consists of either the Veteran's unreliable statements or a private physician's written opinion, which is based upon the Veteran's unreliable history. The assertion of in-service onset or continuity is refuted by the normal separation examination and his denial of a history of high blood pressure at separation. Furthermore, the normal findings in 1974, 1979, 1983 and 1987 are inconsistent with hypertension. There is no other evidence suggesting that continuity of symptomatology or diagnosis since service is shown, and service connection on this basis cannot be awarded. Veterans are competent to provide opinions as to etiology in many instances. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, to the extent that the Veteran asserts that his hypertension is due to service, ACDUTRA, or INACDUTRA or is secondary to or aggravated by a service-connected disease or injury, the Board finds that an opinion provided by a medical professional, who reviews the claims file, examines the Veteran, and provides conclusions based upon the Veteran's specific history as well as known medical principles is more probative than the Veteran's lay assertions. In this case, the opinions provided by the November 2012 VA examiner are more probative than all other pertinent evidence of record. For the reasons noted above, they are more probative than the Veteran's statements. They also are afforded more weight than the opinion provided by the June 2011 VA examiner, since that opinion was based upon an inaccurate history provided by the Veteran. Furthermore, the November 2012 opinions are more probative than the written statement provided by the Veteran's private physician in February 2007, since she merely suggests that it is plausible that hypertension began during service, while the VA examiner gave a definitive opinion. Finally, the November 2012 VA examiner accurately considered the Veteran's medical history dating back to all of his reserve examinations, which was not discussed by the Veteran's private physician. For all of these reasons, the Board finds that the opinions provided by the November 2012 are the most probative evidence of record. The opinions addressed whether hypertension began in or was related to service as well as whether it was secondary to or aggravated by the service-connected diabetes. In each case, the conclusion provided by the examiner was accompanied by a detailed rationale that incorporated both the Veteran's specific history and accepted medical principles. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board also finds the November 2012 VA examination and opinions to be adequate and compliant with its prior remand instructions, because the examiner expressed an opinion with regard to both causation and aggravation and explained the reasons for his conclusions. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a medical examiner must support his conclusion with an analysis that is adequate for the Board to consider and weigh against contrary opinions). Finally, there is no lay or medical evidence that even suggests that hypertension is secondary to or aggravated by a service-connected disease or injury other than diabetes mellitus, type II. As the preponderance of the evidence thus reflects that hypertension was not incurred in service, ACDUTRA, or INACDUTRA, did not manifest to a compensable degree within one year of service, and was not caused or aggravated by a service-connected disability, the benefit-of-the-doubt doctrine is not for application, and the claim for entitlement to service connection for hypertension must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected disease or injury, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs