Citation Nr: 1307906 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-36 400 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for hypertension, claimed as secondary to a service-connected low back disability. REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran had active service from January 1979 to March 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the VA RO in St. Louis, Missouri, which denied service connection for hypertension. In a July 2012 determination, the Board dismissed the issue of entitlement to a rating in excess of 40 percent for a low back disability (left paracentral disc protrusion at L5-S1). As such, this issue is no longer on appeal before the Board. The Veteran's claim for service connection for hypertension was remanded by the Board for further development in this July 2012 determination. The development requested in this remand has been conducted, and the issue has been properly returned to the Board. The Board notes that the Veteran's representative did not submit argument in the form of a Statement of Accredited Representative in Appealed Case after the July 2012 remand was issued. However, in a January 15, 2013, letter attached to the most recent supplemental statement of the case (SSOC), the Veteran and his representative were advised that he had 30 days from the date of this letter to respond. As 30 days have since passed, the Board will proceed to the merits of the claims. FINDING OF FACT Hypertension was not shown in service, was not demonstrated to a compensable degree within one year of discharge from active duty, and the competent medical evidence of record does not show hypertension to be etiologically related to a disease, injury, or event in service, to include a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active military service, may not be presumed to have been incurred in service, and is not proximately due to or the result of any service-connected disability. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, and 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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; and (3) that the claimant is expected to provide. A VCAA letter dated in August 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, this letter notified the Veteran as to how appropriate disability ratings and effective dates are assigned. With regard to the duty to assist, the result of the RO's development indicates that some of the Veteran's service treatment records may not be available. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concludes, however, that the heightened duty to assist has been met. Exhaustive attempts were made to obtain the Veteran's complete service treatment records. However, a July 1993 response from the National Personnel Records Center (NPRC) indicated that efforts to locate the Veteran's military health record have not been successful. It was further noted that, upon release from active duty, the separation command should forward the medical record to the Naval Reserve Personnel Center. The medical and personnel records are later combined and sent to NPRC for permanent storage. In this case, it was noted that the medical record never reached the Naval Reserve Personnel Center or the NPRC. A separate document indicated that the Veteran's naval medical record had not been forwarded to the NPRC, and that the Department of the Navy had advised that there is no medical record available. It is clear from the Veteran's September 2009 VA Form 9 Appeal that he was aware that his service treatment records were not available. The Board notes, however, that the claims file does contain some of the Veteran's service treatment records. Moreover, the Board notes that the Veteran is not claiming service connection for hypertension as directly related to his active duty service but is claiming service connection for hypertension as secondary to his service-connected low back disability. Further, the claims file contains all other available evidence pertinent to the claim, including private and VA medical records. VA has requested records identified throughout the claims process. In essence, the Board finds that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim, and VA has fulfilled its duty to assist. With regard to claims for service connection, 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. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided VA medical opinions with regard to his hypertension claim in November 2008 and September 2012. The examiner reviewed the claims files, conducted the appropriate tests and studies, and noted the Veteran's assertions. As such, the Board finds these examination reports and opinions to be thorough, complete, and sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For any disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2012). 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. 38 C.F.R. § 3.310(b) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Certain diseases, to include 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran contends that his current hypertension is related to his service-connected low back disability. Hypertension means persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90. Dorland's Illustrated Medical Dictionary at 889 (30th ed. 2003). For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). As noted above, regrettably the entirety of the Veteran's service treatment records do not appear to be available for review. However, a review of the service treatment records that are available reveals no complaints, treatment, or diagnoses of hypertension or high blood pressure. The Veteran's blood pressure was recorded as 130/58 on a November 1978 Report of Medical Examination. On a November 1978 Report of Medical History, the Veteran indicated that he did not have high or low blood pressure. With regard to the post-service evidence, the claims file contains a December 1996 private medical record from Dr. R.L.B. noting that the Veteran had no history of blood pressure problems. The Veteran was afforded a VA hypertension examination in November 2008. The examiner reviewed the claims file and examined the Veteran. The Veteran claimed that his hypertension is related to his chronic back problems. The Veteran reported that he had problems with hypertension since 2004 and back problems since 1983. The examiner opined that the Veteran's hypertension is more likely than not essential in nature. He further opined that, although pain can cause sporadic elevations in blood pressure, the medical evidence does not support a finding that chronic pain causes persistent hypertension. Therefore, his hypertension is essential and not secondary to his nerve condition. In a May 2010 VA treatment record, it was noted that the Veteran had hypertension; well controlled on current regimen. In July 2012, this issue was remanded in order to obtain a new VA medical opinion. Specifically, the Board notes that, while the November 2008 VA examiner suggested that the Veteran's hypertension is not proximately due to his service-connected low back disability, it was unclear from this opinion whether his hypertension could have been aggravated by his service-connected low back disability. Therefore, the Board remanded this issue in July 2012 so that the examiner could be asked to provide an opinion as to whether the Veteran's hypertension has been aggravated by his service-connected low back disability at any time during the pendency of the claim. As such, a VA medical opinion was obtained in September 2012. The same examiner who conducted the November 2008 VA examination again reviewed the claims file. The examiner noted that the Veteran has essential hypertension, and that this type of hypertension occurs in more than 90 percent of persons who have hypertension. Pain may cause sporadic increases in blood pressure readings. However, a direct causal effect between chronic pain and essential hypertension has not been established by medical research. Therefore, the Veteran's hypertension is not caused by his complaint of chronic pain related to his service-connected conditions. As far as the Veteran's essential hypertension being aggravated by his chronic pain, it is noted that a review of the record does not support such a supposition. The CPRS record at the Jackson, Mississippi, VA, hospital indicates a diagnosis of hypertension in 2004 but there is no documentation of treatment until an office visit of April 24, 2007. That note indicates that the Veteran was taking Diltiazem 360 mg daily for hypertension. Additional record review indicates that the Veteran has remained on his medication at the same time until the present with no changes. On this medication, his blood pressure has remained well controlled, and he has not developed any "endorgan" damage secondary to hypertension. Of note, he saw his primary care primary care provider most recently in September 2012 with complaint of low back pain and she documented the following: "Hypertension; Well controlled on current regimen." Blood pressure at this visit was 132/70. Also, a review of this vital signs in the CPRS record at the Jackson VA hospital from January 2000 until the present does not show any relationship between his documented personal estimation of pain level and the documentation of his blood pressure reading at the same time. The examiner then cited the Veteran's blood pressure readings from January 2000 through September 2012 and noted the Veteran's complaints of pain. The examiner determined that these findings support that there is no relationship to the Veteran's complaint of pain (or his having pain) and his blood pressure readings. On the average, his blood pressure reading have been well-controlled and there does not seem to be any effect on his blood pressure reading related to his complaints or his degrees of pain as recorded. Therefore, the examiner concluded that there is no objective clinical evidence that supports that the Veteran's pain has caused aggravation of his hypertension. With regard to establishing service connection on a presumptive basis under 38 C.F.R. § 3.309(a), the Board notes that there is no competent medical evidence of record reflecting that the Veteran demonstrated hypertension to a compensable degree within one year of discharge from active duty. As such, service connection for hypertension cannot be granted on a presumptive basis. With regards to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). The Board notes that the Veteran's available service treatment records do not reflect that the Veteran had high blood pressure or hypertension during service. The claims file contains no medical evidence linking a current diagnosis of hypertension to service, and the Veteran has never asserted that he developed hypertension during his active duty service or as a direct result of his active duty service. Therefore, service connection cannot be warranted on a direct basis. See Shedden, supra. With regard to establishing service connection on a secondary basis, the Board notes that the November 2008 VA examiner opined that, although pain can cause sporadic elevations in blood pressure, the medical evidence does not support a finding that chronic pain causes persistent hypertension. The examiner therefore determined that the Veteran's hypertension is essential and not secondary to his nerve condition. In September 2012, this examiner concluded that there is no objective clinical evidence that supports that the Veteran's pain has caused aggravation of his hypertension. The claims file contains no medical evidence to the contrary. Therefore, service connection cannot be established on a secondary basis. The Board has considered the Veteran's contentions that his hypertension is related to his service-connected low back disability. Certainly, the Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran, as a lay person has not been shown to be competent to offer opinions on complex medical questions, such as whether he has a current diagnosis of hypertension that is related to a low back disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Thus, his lay assertions regarding etiology are far outweighed by the November 2008 and September 2012 VA medical opinions provided by a VA physician who had full access to the Veteran's medical history and offered a detailed rationale for his opinions. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for hypertension must be denied on presumptive, direct, and secondary bases. See 38 U.S.C.A §5107 (West 2002). ORDER Entitlement to service connection for hypertension, claimed as secondary to a service-connected low back disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs