Citation Nr: 1308045 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 07-24 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from September 1969 to April 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This case was previously before the Board in February 2011 and was remanded for further development. In April 2009 the Veteran gave testimony at a hearing at the RO before a local hearing officer. A copy of the hearing transcript is of record. FINDING OF FACT Hypertension was no diagnosed in service or within one year of service discharge; and, there has been no demonstration by competent clinical, or credible lay, evidence of record that hypertension is etiologically related to, or chronically aggravated by, service or service-connected PTSD. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, may not be presumed to have been so incurred or aggravated, and is not proximately due to, or chronically aggravated by, service-connected PTSD. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2012). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies in this case. Duty to Notify 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); 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence, including that dated in September 2005, March 2006, and March 2011, the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of the appellant to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the March 2006 letter the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As complete VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Duty to Assist The Veteran's service treatment records are associated with the claims file, as are private and VA records, as well as the Veteran's records from the Social security Administration (SSA). The Veteran has undergone a VA examination that has addressed the medical matters presented by the appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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 March 2011 VA examiner performed a contemporaneous physical examination of the Veteran and elicited information concerning the Veteran's military service. The opinions considered the pertinent evidence of record and contained supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was provided an opportunity to set forth his contentions during a hearing before a Decision Review Officer (DRO) in April 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the April 2009 hearing, the DRO identified the issue on appeal as involving service connection for hypertension. The DRO also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Testimony was elicited regard the history and etiology of his hypertension. Such triggered the Board's Remand to obtain a VA opinion. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor have they identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Board finds that there has been substantial compliance with its February 2011 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Applicable Laws-Service connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 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) (2012). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 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. 38 C.F.R. § 3.303(b) (2012); This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection for certain specified chronic diseases, such as hypertension, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen. The regulation which governs claims for secondary service connection, was amended during the pendency of this appeal, effective October 10, 2006. The current 38 C.F.R. § 3.310(b) sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Given what appear to be substantive changes, and because the Veteran's claim (received in July 2005) was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In an October 2010 RO decision the Veteran was granted service connection for PTSD and was assigned a rating of 100 percent, effective July 29, 2005. The Veteran asserts, in part, that his hypertension is related to his service-connected PTSD. The earliest medical evidence of record noting a diagnosis of hypertension is a November 2005 VA progress note. The November 2005 VA progress note indicates that the Veteran asserted that he had had hypertension for years. A March 2006 VA treatment record indicated that the Veteran's elevated blood pressure could be due to acute ankle pain. A September 2006 VA medical record noted that the Veteran had mildly elevated blood pressure and was in pain and very anxious. At his April 2009 RO hearing (pages 13-14) the Veteran related that his VA psychiatrist had told him that his hypertension was related to stress associated with PTSD. At a March 2011 VA hypertension examination the Veteran stated that he had had hypertension as long as he could remember. The Veteran recalled that he had been hospitalized during service and told that he had elevated blood pressure. He indicated that he had been placed on high blood pressure medications in the 1970s. The Veteran admitted that he could not remember some of what he was told during service, and the examiner stated that the Veteran was a poor historian and did not give much information. His wife (married to the Veteran since October 1971) supplied much of the Veteran's medical history. The March 2011 VA examiner stated that the Veteran's hypertension was mainly essential hypertension that was less likely as not secondary to PTSD or caused or aggravated by PTSD medications. He said there was simply no evidence to support such a theory. He emphasized that 90 to 95 percent of hypertension diagnosis were essential hypertension, and that there were generally certain medical indicators (that were not shown) that alter the diagnosis of essential hypertension. The examiner also indicated that the Veteran's hypertension was not aggravated beyond its natural progression by PTSD. Finally, the examiner stated that the Veteran's hypertension was not related to service and did not have its onset within one year of the Veteran's service discharge. He referenced the lack of objective evidence to support an earlier diagnosis. The Board finds that the preponderance of the competent and credible evidence does not show that the Veteran's hypertension is causally related to his service-connected PTSD. The March 2011 VA examiner, after reviewing the Veteran's claims file and performing a contemporaneous examination, clearly stated that the Veteran has essential hypertension, which was not caused by the Veteran's service-connected PTSD. The March 2011 VA examiner provided a sound rationale for the opinion expressed, and it is clear that the opinion was based on a comprehensive review of the Veteran's medical history. The March 2011 VA examiner referenced multiple clinical records of the Veteran, including numerous blood pressure readings from the time of the Veteran's active service until the time of the March 2011 VA examination. He did not limit his medical review to just blood pressure readings and psychiatric records but noted the Veteran's other significant medical conditions such as headaches, ulcers, and back problems. The examiner's opinions are essentially uncontradicted. Indeed, the Board notes that "essential hypertension" is defined as "hypertension occurring without discoverable organic cause." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 909 (31st ed., 2007). Because "essential hypertension", by definition, has no identifiable cause, it cannot be deemed caused by a service-connected disability. This is at the core of what the VA examiner was stating. Thus, service connection for (essential) hypertension on a secondary basis is not warranted. At his April 2009 RO hearing (page13-14) the Veteran asserted that his VA treating psychiatrist had indicated that the Veteran's hypertension was related to his stress resulting from PTSD. However, in reviewing the medical records associated with the VA psychiatrist identified by the Veteran (Dr. DD), the Board can find no such statement. Dr. DD made no such assertion in his May 2009 letter that outlined the Veteran's current medical conditions, including his PTSD. Further, to the extent that he is personally associating his hypertension with PTSD, the Board emphasizes that the Veteran is not a medical professional, and that his opinion relating such a nexus is not deemed competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Providing a nexus opinion that his hypertension is caused or aggravated by his PTSD is a complex medical question. See generally King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). As for direct service connection, the Veteran's service treatment records reveal that hypertension was not noted in service, including on the Veteran's March 1971 service separation examination. The report of medical history at separation shows that the Veteran denied a history of high blood pressure and the separation examination shows that blood pressure was 130/80. No heart defects or diagnoses were noted on the separation examination report, and there is no medical opinion relating such disability to the Veteran's military service. The March 2011 VA examiner specifically noted that the Veteran's hypertension was not related to his military service as there was no objective evidence to support such a finding. There is also no objective evidence that the Veteran was diagnosed as having hypertension within one year of his service discharge. The contrary is shown. When he was examined by VA in April 1972 and September 1978, which included blood pressure readings, a diagnosis of hypertension was not made. Indeed, when he was seen in these instances, the Veteran provided no history of complaints, treatment, or diagnosis of hypertension. Had he been diagnosed as having hypertension in service and receiving for hypertension since the 1970s, the Board believes that he would have mentioned such to the VA examiner. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first hand knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for 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). However, the Veteran is not competent to establish a matter that requires medical knowledge, such as providing the etiology of his hypertension. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Additionally, the Veteran's assertions as to continuity of symptomatology of hypertension is not supported by the record. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). The Board again notes that the Veteran denied a history of high blood pressure at the time of his service separation examination. Further, the Board notes that the April 1972 VA examination conducted approximately a year following the Veteran's discharge from service indicates that the Veteran made no complaints related to hypertension and his blood pressure was 120/84. It is equally important to note that there were also no findings of high blood pressure or hypertension in a May 1974 VA treatment note or the report of the September 1978 VA examination. The Veteran's history of chronic hypertension since service very questionable. Moreover, he has not identified any symptoms that would be the type that a lay person could recognize as being associated with hypertension. Indeed, the Board know of no such symptoms. His assertions are thereby neither competent nor credible. As such, the preponderance of the evidence is against service connection for hypertension, on a direct or secondary basis. To the extent that the Veteran may be claiming hypertension as a result of combat, the Board notes that the provisions of 38 U.S.C.A. § 1154 do not obviate the requirement that the Veteran must submit medical evidence of a causal relationship between his current condition and service. Libertine v. Brown, 9 Vet. App. 521, 524 (1996). That is, even assuming combat status, the Veteran must provide satisfactory evidence of a relationship between his service and hypertension. 38 U.S.C.A. § 1154(b). He has not done so in this case. In sum, the criteria for service connection for hypertension is not met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hypertension, to include as secondary to service-connected PTSD, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs