Citation Nr: 1307472 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 08-03 923 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as secondary to the service-connected anxiety disorder with features of service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran provided testimony at a December 2009 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. By way of a January 2011 Board decision, the Board granted service connection for an innocently acquired psychiatric disorder, to include an anxiety disorder with features of PTSD, and remanded the currently appealed claim for further development and adjudication. 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 Veteran is not shown to have manifested chronic hypertension during active service or for many years there. 2. The currently demonstrated chronic hypertension is not shown to be due to an event or incident of the Veteran's period of active service or to have been caused or aggravated by his service-connected psychiatric disability. 3. The Veteran is not found to have presented credible lay assertions sufficient to establish a continuity of symptomatology referable to chronic hypertension since service. CONCLUSION OF LAW The Veteran's disability manifested by hypertension is not due to disease or injury that was incurred in or aggravated by active service; nor may it be presumed to have been incurred therein; nor is proximately due to or the result of the service-connected psychiatric disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). A May 2007 VCAA letter explained the evidence necessary to substantiate the claim for service connection for hypertension. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the VCAA notice letter from VA was provided prior to initial adjudication of the claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). At the time of the May 2007 VCAA notice, service connection for psychiatric disability had not yet been granted. As a result, the Veteran was not advised of what the evidence must show to support a claim of service connection for hypertension as secondary to service-connected psychiatric disability. However, he has demonstrated on multiple occasions actual knowledge as to what is required to support such a claim. In March 2007, he contended that he had "hypertension from PTSD stress." At his December 2009 hearing, the Veteran testified that his tension and his PTSD had contributed to his hypertension. His representative was effective in eliciting information from the Veteran in this regard and ensuring that the Veteran had actual knowledge as to what was required to substantiate this aspect of his claim. As a result, the lack of a specific letter as to VCAA notice on this aspect of his claim is no more than harmless, non-prejudicial error. To remand this case for VCAA notice on this point would convey no new information or knowledge to the Veteran and therefore would serve no useful purpose. The claim has received significant additional development and readjudication, based on the theory of secondary service connection, since the December 2009 hearing. Second, VA has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim. In this regard, the service treatment records are associated with the claims file, as are the Veteran' Social Security Administration (SSA) disability records, and other identified relevant VA and private medical records. The Veteran has not made the RO or the Board aware of any additional available evidence that needs to be obtained in order to fairly decide the appeal. Additionally, as will be discussed, the April 2011 VA examination and opinion and October 2012 Veterans Health Administration (VHA) opinion obtained by the Board, when viewed in conjunction with the lay and additional medical evidence associated with the claims file, are sufficient for a determination on the merits of the Veteran's appeal. See 38 U.S.C.A. § 5103A(d). The April 2011 and October 2012 VHA medical opinions are adequate because they are very well explained by physicians who are obviously competent in their fields and who carefully reviewed the relevant evidence of record and provided fully reasoned explanations for their opinions. The Board finds that the duty to assist and duty to notify provisions of VCAA have been fulfilled to the extent possible with regard to his claim. Thus, no additional assistance or notification to the appellant is required based on the facts of the instant case. There has been no prejudice to the appellant that would warrant a remand, and his procedural rights have not been abridged. Bernard v. Brown, 4 Vet. App. 384 (1993). Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate that (1) a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even in cases where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). Lay statements may serve to support a claim of service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain chronic disabilities, to include hypertension, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Merits of the Claim The Veteran asserts that his hypertension either began during his period of active service or within one year after discharge from service or was caused or aggravated by his service-connected psychiatric disability. The Veteran served on active duty from March 1968 to March 1972. His service included a period of duty in the Republic of Vietnam. The Veteran is service connected for a psychiatric disorder, including anxiety with features of PTSD, rated as 30 percent disabling. The service treatment records are associated with the claims file. His blood pressure at a November 1967 service entrance examination was 120/80 sitting, and blood pressure at a January 1972 service separation examination was 102/68 sitting and 110/78 standing. The May 2001 and July 2001 private records of hospital pre-admission physicals are included in the Veteran's SSA disability records. These records show a past medical history of labile blood pressure. The Veteran's blood pressure in May 2001 was measured at 140/82, and in July 2001, it was measured at 133/81. A July 2001 pre-admission hospital physical record states that the Veteran was taking anxiolytic medication and medication for hypertension. The treatment and medication for high blood pressure from 2006 forward is well documented in the claims file. At his December 2009 hearing, the Veteran testified about his taking medication for blood pressure, identified as diazepam, from the time shortly after service through the present time. (As will be discussed, a VHA examiner has indicated that diazepam is generally used to treat anxiety). See December 2009 Board hearing transcript, pages 10-11. Also at his hearing, the Veteran described a history of having widely fluctuating blood pressure from the time shortly after discharge from service in March 1972 until the present. See December 2009 Board hearing transcript, pages 10-11. At a VA examination in April 2011, the examiner could find no diagnosis of hypertension prior to 2005. As noted, a July 2001 pre-admission hospital physical record states that the Veteran was taking anxiolytic medication and medication for hypertension. However, this was purely by history, the hypertension medication was not identified, and the Veteran was not diagnosed as having hypertension. As was noted by the October 2012 VHA examiner, the Veteran had described taking medication for hypertension from approximately three years after discharge from service, but the medication was diazepam, an anti-anxiety (i.e., anxiolytic) medication. Thus, it is possible that the history related by the Veteran of being treated with medication for hypertension, was not reliable, due to a lack of understanding by the Veteran as to the purpose of the medication. The April 2011 VA examiner stated that the Veteran clearly had hypertension that he would categorize as being in the mild range. He added that there were no complications from the hypertension with respect to cardiovascular or renal disease and that the hypertension was controlled with a relatively low dosage of medication. The examiner concluded that the Veteran's hypertension did not start in the service because his service was from 1968 to 1972 because it had begun in the 1980s. This was based on history provided by the Veteran at the examination, that he had experienced hypertension for about 30 years. At the April 2011 VA examination, the Veteran also indicated to the examiner that he did not remember being treated for hypertension with medication until the last five to six years. The examiner recounted that the Veteran was now being treated with Atenolol 50 mg, and also hydrochlorothiazide on a low dose. The April 2011 VA examiner opined that the service-connected psychiatric disorder did not influence one way or the other or aggravate the Veteran's hypertension. The examiner elaborated that the Veteran's hypertension was not the kind you would expect from a poorly controlled psychiatric disorder. The examiner questioned whether the Veteran actually had a psychiatric disorder, but opined that in any event this was a non-issue, because the hypertension was mild and well controlled and was not aggravated by the psychiatric condition. The October 2012 VHA physician noted that there was not enough evidence to conclude that the Veteran's hypertension began during active service. She noted that, on his application in March 2007, he indicated being treated for hypertension by Dr. P.J. from June 1975 to 2007. This was three years after he served on active duty from March 1968 to March 1972. The October 2012 VHA physician noted that, at the 2009 hearing, the Veteran did not specifically answer the question of when he was diagnosed with hypertension. Rather, he had asserted that he had been on diazepam for 35 to 40 years. The examiner noted, however, that diazepam was an FDA-approved drug for the treatment of anxiety disorders, alcohol withdrawal and seizures. The examiner noted that diazepam did not have a primary indication of treatment for hypertension. Based on this fact, the examiner expressed doubt as to whether the Veteran was actually diagnosed and treated for hypertension soon after service. The VHA physician further noted that it was unlikely that the Veteran's hypertension was manifested to a degree of 10 percent or more during the first year after the Veteran's discharge from service. The examiner noted that there were no supporting documents to provide any measurements of blood pressure or treatment of hypertension during that year, other than blood pressure readings of 102/68 sitting and 110/78 standing, at discharge from service, which was within the optimal range of normal, defined as less than 120/80. The VHA physician further related that it was unlikely that the Veteran's hypertension was related to an event or incident during his period of active service. She elaborated that, while stress and anxiety might result in immediate sympathetic stimulation (that is, an increased in heart rate and cardiac output), there had been no validation that transiently elevated blood pressures result in chronic hypertension. She cited to Mustacchi P: Stress and hypertension (West J. Med. 1990 Aug; 153:180-185) in support of this opinion. The VHA physician further found that it was unlikely that the Veteran's hypertension was caused by the service-connected anxiety disorder. The examiner noted that the Journal of the American Medical Association concluded that there was "no independent association between depression or anxiety and a 10-year incidence of hypertension." (JAMA, October 22/29, 2003-Vol 290, No. 16.) The examiner noted the argument raised by the Veteran's representative in August 2012, citing medical literature for the proposition that psychosocial factors had been associated with the occurrence or recurrence of cardiovascular disease (CVD). She further noted that the Veteran's representative had submitted evidence noting that "it [was] at least as likely a not that the Veteran's PTSD plays a significant role in the development of the [Veteran's] cardiovascular disease." However, this was noted to relate to a relationship between anxiety and cardiovascular disease, rather than that between anxiety and hypertension. Based on the October 2012 VHA examiner's observations, the Board discounts significantly the probative worth of the identified information because it pertains to another case with substantially different facts, in addition to applying to coronary artery disease, rather than hypertension per se. The representative requested that the Board obtain an expert medical opinion in light of these findings, an action that the Board has taken, with the resulting October 2012 VHA opinion being well-explained, consistent with the facts of record, and of very substantial probative weight. The October 2012 VHA medical opinion also found that it was unlikely that the claimed hypertension was chronically worsened by his service-connected anxiety disorder. She opined that, based on the research described in her opinion, anxiety might cause transient elevations in blood pressure. She asserted that anxiety had not been proven to lead to fixed hypertension. As noted, the Board finds the lay assertions by the Veteran of being treated for hypertension from June 1975 to 2007 as being of limited evidentiary value low due to an inadequate understanding about the medications he was prescribed. The Veteran also reported during the April 2011 VA examination a history of treatment for hypertension dating back only 30 years, which led the examiner to estimate the onset of hypertension to the 1980s. Moreover, the Veteran indicated to the April 2011 VA examiner that he had only been receiving medication for hypertension for the past five to six years. These differing statements call into question the credibility of the Veteran's assertions linking the onset of the claimed hypertension to the time he was in service or earlier than many years thereafter. Thus, the Board must place greater probative weight on the medical opinions provided by the April 2011 and October 2012. The Board finds the medical opinions of the April 2011 VA examiner and the October 2012 VHA physician as being of a high probative value. They reviewed the medical evidence of record and reached well-explained conclusions based thereon. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In sum, the preponderance of the evidence establishes that the Veteran did not develop chronic hypertension during active service or within one year of discharge from service. See 38 C.F.R. §§ 3.303, 3.307, 3.309(a). The examiners were also in agreement that the Veteran's hypertension was not related to any incident or event of the Veteran's period of active service. See 38 U.S.C.A. § 1110. In addition, for reasons that were well explained by both examiners, they opined that the claimed hypertension was not caused or aggravated by the service-connected psychiatric disability. See 38 C.F.R. § 3.310(a). While the October 2012 VHA physician was more categorical in her approach to the somewhat controversial point of cause or aggravation of hypertension by psychiatric disability, she explained her findings well and cited to relevant medical authorities. By contrast, the April 2011 VA examiner based his opinion more on his clinical experience, noting that, in his view, the Veteran's mild and well-controlled hypertension was not one that would be expected to be the type that would be aggravated by anxiety or psychiatric disability. Between the two opinions, with differing perspectives on this matter, but offering the same conclusion, the Board is highly persuaded that, under the facts of this particular case, the preponderance of the evidence shows that the Veteran's hypertension was not caused or aggravated by his service-connected psychiatric disorder. Because the preponderance of the evidence is against the claim, the benefit of the doubt is not for application in resolution of this appeal. ORDER Service connection for hypertension is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs