Citation Nr: 1307621 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-42 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for residuals of stroke. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to June 1966, and from November 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. The most probative evidence of record does not demonstrate that the Veteran's hypertension was caused or aggravated by his service, or was manifest to a compensable degree within one year of discharge. 2. The most probative evidence of record does not demonstrate that the Veteran's residuals of a stroke were caused or aggravated by his service, or by a service-connected disability, or were manifest to a compensable degree within one year of discharge. CONCLUSIONS OF LAW 1. Hypertension was not caused or aggravated by the Veteran's service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a) (2012). 2. Residuals of a stroke were not caused or aggravated by the Veteran's service, or by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a), 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, a letter dated in July 2009 from the RO satisfied these criteria. The RO advised the Veteran of the basic criteria for service connection, and explained VA's duties to assist him in obtaining evidence relevant to the claim. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. With regard to the claim for hypertension, the Veteran has been afforded an examination, and an etiological opinion has been obtained. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination obtained is more than adequate, as it is predicated on a review of the pertinent evidence, consideration of the Veteran's lay statements, and an examination of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the hypertension issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The appellant and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and they have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield. With regard to the claim for residuals of a stroke, the Veteran has not been afforded and examination, and an etiological opinion has not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. With regard to the first McLendon criterion, the Veteran is shown to have the claimed condition. However, with regard to the second McLendon criterion, the Veteran's service treatment reports do not show any relevant complaints, treatment, or findings. Therefore, the second McLendon criterion is not satisfied. With regard to the third McLendon criterion, the Board has determined that the earliest medical evidence of a stroke is dated no earlier than 2009. There is no competent evidence to show that residuals of a stroke are related to service, which ended in 1971. Therefore, the third McLendon criterion is not satisfied. Given the foregoing, an examination for residuals of a stroke need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection The Veteran asserts that he has hypertension, and residuals of a stroke, which should be service connected. He argues that his blood pressure readings show that he was "prehypertensive" during service. See Veteran's appeal (VA Form 9), received in October 2010. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology of a chronic disease 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); see Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include a brain hemorrhage, a brain thrombosis, and hypertension, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt should be resolved in the veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Hypertension The Veteran's service treatment reports for his first period of active duty include a separation examination report, dated in May 1966, which shows that his heart was clinically evaluated as normal, and that his blood pressure was 114/62. In an associated "report of medical history," the Veteran indicated that he did not have a history of "high or low blood pressure." As for the medical evidence dated in between the Veteran's first and second period of active duty, it consists of a service treatment report apparently created in association with duty in the National Guard. Specifically, it consists of a service examination report, dated in June 1968, which shows that his heart was clinically evaluated as normal, and that his blood pressure was 110/80. In an associated "report of medical history," the Veteran indicated that he did not have a history of "high or low blood pressure." The Veteran's service treatment reports for his second period of active duty consist of a separation examination report, dated in March 1971, which shows that his heart was clinically evaluated as normal, and that his blood pressure was 136/80. In an associated "report of medical history," the Veteran indicated that he did not have a history of "high or low blood pressure." The relevant post-service medical evidence consists of VA and non-VA reports, dated between 2001 and 2012. This evidence includes a report from J.D.B., M.D., dated in February 2001, which was apparently created in association with a claim against a former employer for asbestosis. The report notes that the Veteran denied any significant cardiorespiratory symptomatology except occasional heartburn, and that he had a 25 pack/year history of smoking, which he quit in 1990. VA progress notes, dated between 2008 and 2009, include a June 2009 report which notes that the Veteran's medications include Losartan for control of his blood pressure, and that he had a history of hypertension. He was also noted to have a history of a stroke in March 2009. A VA hypertension examination report, dated in March 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The diagnosis was hypertension. The examiner indicated that it was less likely as not (less than 50 percent probability) that the Veteran's hypertension was incurred in or caused by his service. The examiner explained that the Veteran had reported that he was diagnosed with hypertension 10 to 15 years before, and that, the criteria for diagnosis of hypertension requires three or more readings over a period of time, and that hypertension is considered to be present if the average blood pressure is greater than 140/90. The Board finds that the claim must be denied. The Veteran was not treated for hypertension during service, nor was hypertension noted upon separation from service. Therefore, hypertension was not shown during service. See 38 C.F.R. § 3.303(a). There is no competent medical or competent and credible lay evidence to show that hypertension was manifest to a compensable degree within one year of discharge from active duty. 38 C.F.R. §§ 3.307, 3.309(a). The earliest post-service medical evidence of hypertension is dated in 2009. This is about 38 years after separation from active duty service. In addition, the Board finds that the March 2012 VA opinion is highly probative evidence against the claim. See Winsett, Bloom, supra. In this opinion, it was concluded that the Veteran's hypertension was not incurred in or caused by his service. The examiner indicated that the Veteran's claims files had been reviewed, and the opinion is accompanied by a sufficiently detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board further points out that there are no in-service readings of blood pressure of 140/90 or greater, as required to show hypertension per the March 2012 VA examination report. In summary, the evidence is insufficient to show that the Veteran has hypertension that was manifest in service, within one year of discharge or is otherwise related to his service, and the Board finds that the preponderance of the evidence is against the claim. Hence, the claim must be denied. In reaching this decision, the Board has considered a statement from Dr. C.R.P., dated in March 2010, in which he states that it is at least as likely as not that the Veteran's hypertension is related to his service. He states that when the Veteran exited the military, he had "pre-hypertensive" blood pressure numbers "and that his blood pressure today is a continuation of that same disease." However, Dr. C.R.P. did not discuss the fact that the Veteran only had a single blood pressure reading upon exiting service, and that this single reading appears to be an insufficient basis for a diagnosis of hypertension. See March 2012 VA examination report; see also 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (requiring confirmation of hypertension by two or more readings taken over three or more days). In addition, Dr. C.R.P. did not discuss the many intervening years between the Veteran's service and his first diagnosis of hypertension. Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant post-service medical history). The Board further notes that Dr. C.R.P.'s opinion is unsupported by his own treatment reports, dated between 2007and 2008, to the extent that they contain no mention of hypertension. Finally, the Board notes that Dr. C.R.P.'s opinion was reviewed by the March 2012 VA examiner, who clearly found it unpersuasive. Therefore, the Board finds that Dr. C.R.P.'s rationale is insufficient, and that his opinion is insufficiently probative to warrant a grant of the claim. Nieves-Rodriguez. B. Residual of Stroke The Veteran's service treatment reports from both his first and second periods of active duty, as well as a June 1968 service examination report performed in association with National Guard duty (between his first and second periods of active duty) do not note a stroke. Therefore, a stroke is not shown during service. See 38 C.F.R. § 3.303(a). As for the post-service medical evidence, the earliest medical evidence of a stroke is dated in 2009. This is about 38 years after separation from active duty service. The Veteran has not asserted that he has had a continuity of symptomatology following his separation from service, and this lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim on a direct basis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, there is no competent opinion of record which links the Veteran's stroke to his service, nor is there any evidence to show that the Veteran had a brain hemorrhage, or brain thrombosis, that was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the claim must be denied. Although the Veteran has not specifically so stated, it would appear that he intended to claim that his residuals of a stroke were incurred secondary to "what should be" service-connected hypertension. However, the Board has determined that service connection for hypertension is not warranted. Service connection is currently in effect for hearing loss, and tinnitus, and neither of these disabilities is shown to have caused or aggravated his stroke. Therefore, there is no underlying service-connected disability upon which service connection for residuals of a stroke may be predicated under 38 C.F.R. § 3.310. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. C. Conclusion Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The issues on appeal are based on the contention that the Veteran was "pre-hypertensive" during service, and that he has residuals of a stroke due to service, or as secondary to service-connected disability. To the extent that the Veteran has asserted that he began having high blood pressure symptoms, and stroke symptoms, at some point in time, his statements are competent evidence to show that he experienced these symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran does not have the requisite skills, knowledge, or training, to be competent to state whether his symptoms were sufficient for a diagnosis of hypertension, or whether either of the claimed disabilities is related to his service or to some other disease process that is related to his service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, hypertension and a stroke fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In this case, the Veteran's service treatment records do not show a diagnosis of hypertension or stroke; his inservice blood pressure readings have been considered. His post-service medical records do not show a diagnosis of hypertension or stroke prior to 2009, which is about 38 years after service. A VA health care provider has issued an opinion in which it was determined that the Veteran's hypertension is not related to his service. Even considering the Veteran's self-report, that he was found to have hypertension as much as 15 years prior to his March 2012 VA examination (i.e., in about 1997), this is still 26 years after separation from service. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that he has hypertension, and residuals of a stroke, that are related to service, or to a service-connected disability. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. ORDER Service connection for hypertension is denied. Service connection for residuals of stroke is denied. ____________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs