Citation Nr: 1307347 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-50 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran had active service from May 1942 to December 1945 and from April 1947 to October 1963, including combat service in Korea and his decorations include the Bronze Star Medal, Combat Medic Badge and the Purple Heart Medal.. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In this case, recent VA medical records were added to the Veteran's electronic Virtual VA folder. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's hypertension was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 2. The preponderance of the evidence shows that the Veteran's heart disorder was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. Hypertension was not incurred during active military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5107(b), (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. A heart disorder was not incurred during active military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in February 2007 prior to the initial rating decision. These letters included notice of the type of evidence necessary to establish a disability rating or effective date for the issues under consideration, pursuant to the recent holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained his service treatment records, VA medical records, and private treatment records. The Veteran was also provided with a VA examination. He has not indicated there are any additional records that VA should seek to obtain on his behalf. In March 2011 and November 2012, the Board remanded the case for further development. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran was afforded a VA examination and medical opinions were provided on remand. The VA examiners conducted an examination and provided an opinion based on a review of the file and an examination of the Veteran. The Board finds that the examination reports are adequate as they take into account the Veteran's medical and lay history and offer pertinent findings and conclusions. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). As such, the information requested by the Board was provided and there was substantial compliance with the Board's remand instructions. Service connection criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; 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"). Some chronic diseases, such as cardiovascular-renal disease (including hypertension), may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a) (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2011), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that although his hypertension and heart disease were initially diagnosed many years after service, service connection is warranted for both disabilities because the diseases are related to or had their onset in service. Service treatment records (STRs) include a December 1954 complaint of chest pain on the right side - the diagnosis was lymphadenitis. In December 1955, the Veteran again complained of chest pain - an x-ray was normal. In October 1958, the Veteran complained of sharp pain in the right parasternal area with some associated shortness of breath. The Veteran denied a previous history of chest pain and an examination of the chest and heart was negative. In November 1958, the Veteran reported occasional pain along the right parasternal area that was relieved with Ben-Gay. The impression was musculoskeletal pain. A July 1963 retirement examination marked the Veteran's heart as normal and his blood pressure was 124/80. In a contemporaneous report of medical history, the Veteran denied pain or pressure in the chest, palpitation or pounding heart, and high or low blood pressure. An EKG taken at the time of retirement was normal. STRs show no complaints of, treatment for, or a diagnosis of hypertension. A March 2005 letter from the San Juan VA medical center states that the Veteran was being treated for hypertension, among other things. A review of VA medical records show the Veteran's problem list includes hypertension and coronary artery disease. In statements dated in January and February 2007, the Veteran indicated that he currently suffered from high blood pressure and heart and blood illnesses. He stated that he has had high blood pressure for many years. In a June 2007 psychiatric report, the physician diagnosed the Veteran with an Axis III diagnosis of high blood pressure. A March 2010 private medical record showed that the Veteran denied chest pain, pressure, palpitations, tachycardia, and edema. In August 2011, the Veteran is accorded a compensation and pension (C&P) heart examination. During the examination, the Veteran indicated that he had a history of arterial hypertension and that he suffered from high blood pressure while on active duty but never received medical treatment. He further indicated that his hypertension was always stable without any complications. He also reported that he had a history of heart arrhythmia that was diagnosed in the 1980s. The diagnoses were hypertension and bradycardia and the examiner noted that there was no evidence in the Veteran's STRs of arterial hypertension or bradycardia or condition that was etiologically related. He opined that the Veteran's arterial hypertension and bradycardia were not caused by or a result of the Veteran's active military service. The examiner reiterated his opinion in a December 2012 addendum. As an initial matter, the Board notes that although the Veteran is a decorated combat Veteran, he does not report that either disability developed while serving in combat and thus there is no presumption that either his hypertension or heart disease became manifest during his combat service. See Reeves. Indeed, although the Veteran has offered conflicting accounts as to the onset of the diseases, on his January 2007 application seeking service connection for these disorders, the Veteran indicated that they developed approximately 10 years earlier, i.e., many years following his October 1963 discharge from active duty. The Board further finds that the preponderance of the evidence is against a finding that the Veteran's current hypertension and heart disorder (diagnosed as bradycardia) are related to, were incurred in, or manifested to a degree of 10 percent within one year following the Veteran's service. STRs are silent for a diagnosis of hypertension or heart disease, despite complaints of chest pain. The Veteran's post-service medical records do not show any complaint, diagnosis, or treatment for hypertension or heart disease until several years after separation from service. Even when factoring in the Veteran's report that he was diagnosed with heart arrhythmia in the 1980s, this would indicate a sizeable gap after separation from service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In this case, the evidence does not show a diagnosis of hypertension until several years after separation, and there is no evidence, lay or otherwise, of record linking the claimed condition to service. Accordingly, the Board finds that service connection for hypertension on a direct basis, and under the presumptive provisions of 38 C.F.R. § 3.309(a) must be denied. Moreover, the evidence does not establish continuity of symptomatology in this case. While the Veteran has reported that he had "hypertension" in service but did not receive treatment, he has not indicated that his symptoms continued thereafter. As noted above, the first assessment of hypertension or elevated blood pressure was shown years after service with no indication that it is or may be related to service. Thus, the Board finds that there is no continuity of symptomatology regarding his hypertension. Additionally, the Veteran has not claimed that he had a heart disorder in service that has continued after service. The Veteran indicated that he was first diagnosed with heart arrhythmia in the 1980s with no indication that this diagnosis was related to service. Thus, the Board finds that there is no continuity of symptomatology regarding his heart disorder. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. In this case, however, the Veteran has not claimed that he has medical training that would permit him to provide a competent opinion concerning the etiology of the hypertension or heart condition. The Board notes that hypertension and heart disease are not two readily identifiable disorders capable of lay observation. His opinion, therefore, cannot constitute competent evidence concerning etiology as such is beyond the observation abilities of a lay person. See Nieves-Rodriguez, 22 Vet. App. 295; Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board finds the August 2011 VA examiner's opinion is of greater probative value than the Veteran's lay assertions as the August 2011 VA examiner based his opinion on a review of the claims file, an examination of the Veteran, and has provided an opinion such that the Board can render an informed decision. Moreover, in offering their impressions, the VA examiners were acknowledged in the reports that the Veteran reported that the conditions had their onset in service, but concluded based on their examination findings, the medical evidence and their legal training that the conditions were not related to or had their onset in service. Their opinions are thus adequate because they took into consideration the Veteran's report as to the onset of his conditions. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) ( "[T]here is no reasons or bases requirement imposed on examiners."). In light of the foregoing, the preponderance of the evidence is against the claims of service connection and thus service connection for hypertension must be denied. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for hypertension is denied. Service connection for a heart disorder is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs