Citation Nr: 1308146 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-38 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1944 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a Board hearing at the RO in April 2012 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The issue was remanded for further development by the Board in June 2012 to allow the August 2010 VA examiner to provide a supplemental opinion addressing aggravation of hypertension. In June 2012, a VA examiner provided the requested opinion. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 has a current diagnosis of hypertension. 2. The evidence of record does not establish that the Veteran experiences symptoms of chronic hypertension during service or continuous symptoms of hypertension since separation from service. 3. The Veteran's hypertension did not manifest within one year of separation from service. 4. The Veteran's hypertension is not causally or etiologically related to service. 5. The Veteran's hypertension is not causally or etiologically related to his service-connected anxiety disorder, nor was it aggravated by the service-connected anxiety disorder. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that prior to the initial unfavorable decision in March 2009, through a VCAA letters dated January 2009 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection, as well as the criteria for rating a disability and those governing effective dates of awards. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA and private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was provided VA examinations in August 2010 and June 2012. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The claim was remanded by the Board in June 2012 to allow the August 2010 VA examiner to provide a supplemental opinion addressing aggravation of hypertension. In June 2012, a VA examiner provided the requested opinion. Aside from the August 2010 VA examiner failing to address the aggravation issue, the Board finds that VA the examination report were adequate to decide the claim of service connection because the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings to include nexus opinions with adequate bases for the opinions. Thus, further examination is not necessary regarding the issue on appeal. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (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 Board personal hearing, the Veterans Law Judge (VLJ) noted the elements of the claim that were lacking to substantiate the claim for service connection. The VLJ asked questions to ascertain the onset of symptoms, duration of symptoms, and any nexus between service and a current disability. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars of the United States. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Under the pertinent regulations, hypertension means that the diastolic blood pressure is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension means that the systolic blood is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence."). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify."). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran has a current diagnosis of hypertension as documented by the Veteran's VA treatment records. The Veteran contends that his hypertension is related to his active duty service or is secondary to service-connected anxiety disorder. Specifically, the Veteran claims that he experiences nightmares or night terrors during which causes severe headaches and his blood pressure to spike. The only available service treatment record noting the Veteran's blood pressure reading is the April 1946 separation examination report, which showed a blood pressure reading of 110/70 millimeters mercury (mmHg.), which is normal under 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Therefore, the Board finds that the Veteran did not experience chronic symptoms of hypertension during service. The Veteran testified at his April 2012 Board hearing that he has had hypertension since service. Although the Board does not doubt the sincerity of his statements regarding his symptoms of hypertension, the blood pressure reading at the time of service separation is of more probative value than his lay assertions made many years after service separation. The Board also finds that his statements as to onset of hypertension are somewhat inconsistent throughout the record, therefore not credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, 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.) It appears that the Veteran believes that he has normal blood pressure, which is only elevated with episodes of night terrors. In a February 2009 statement, the Veteran averred that he does not normally have high blood pressure; however, he is under the care by Dr. Murphy who prescribed medication to lower his blood pressure when it spikes at night due to night terrors. Additionally, in a June 2009 VA psychology assessment note, the Veteran's daughter indicated that her father said that he did not have a blood pressure problem and wondered how much of an appreciation he had for his underlying medical condition. Concerning this, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating his current hypertension to his service or his anxiety disorder, the Board finds that the etiology of the Veteran's hypertension is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms, that are non-medical in nature, such as blood pressure readings taken at home; however he is not competent to render a medical diagnosis or etiology of hypertension in this case. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). No medical evidence of record finds a relation between active duty service and the Veteran's hypertension or between the Veteran's anxiety disorder and hypertension. The medical evidence of record regarding the etiology of the Veteran's hypertension was provided by the VA examiners in August 2010 and June 2012. The August 2010 VA examiner reviewed the Veteran's claims file, provided a physical examination and noted the Veteran's history. The Veteran reported the onset of hypertension was 60 years ago, approximately in 1950 and that he was currently taking medications. Blood pressure measurements were 168/87 mmHg; 173/81 mmHg, and 177/85 mmHg. The diagnosis was essential hypertension. The examiner noted that the Veteran had no angina and was very active for his age. The examiner noted that he had no hypertension while in service. The examiner noted that PTSD did not cause hypertension although stressors of life could cause blood pressure to go up temporarily; however, if PTSD and other stressors caused hypertension, then hypertension would be very common. Furthermore, in June 2012, another VA examiner opined that it was less likely as not that the Veteran's service-connected psychiatric disability aggravated his hypertension. The examination was based on a complete review of the claims file and clinical examination of the Veteran. The Veteran reported that he was diagnosed with hypertension in the early 2000's. He stated that he had insomnia, anxiety, nightmares about his military experience and that his blood pressure spiked when he had nightmares. He also stated that he could control his blood pressure during the day. Blood pressure measurements were 130/67 mmHg; 149/69 mmHg, and 155/80 mmHg. The diagnosis was hypertension and the Veteran's current treatment plan included taking continuous medication for hypertension. The examiner noted that the Veteran's service treatment records were negative for diagnosis of or treatment for hypertension and that the record of 1957 and 1958 psychiatric hospitalizations for psychiatric disorders made no reference to hypertension or any blood pressure spikes with or during those admissions. The record reflects that the Veteran was admitted to VA psychiatric ward with a diagnosis of chronic severe compulsive personality in 1957 and 1958, at which time no reference was made with regard to high blood pressure. The Veteran reported constant headache, fatigue and restlessness. Although no blood pressure readings were noted at those times, on laboratory examinations, blood examinations were noted to be within normal limits. The examiner further noted that the earliest evidence of record referring to hypertension is 2004 although actual blood pressure readings on which the diagnosis was made were not found. To that effect, the record includes a March 2004 private treatment report reflecting the Veteran's past history of hypertension and another private treatment report dated in the same month noting a blood pressure reading of 166/76 mmHg. The Veteran submitted a blood pressure reading log which includes numerous blood pressure readings over the months of December 2003 and January 2004, with systolic pressure ranging from 120 to 198 and diastolic pressure ranging from 64 to 92. The Board acknowledges that this evidence is competent and credible evidence as to the symptoms observed by the Veteran. However, even assuming these measurements were accurate, the first post service evidence of record noting the Veteran's high blood pressure is in December 2003, approximately 57 years after his separation from service. The record also reflects that the Veteran's hypertension was first treated with medications in August 2006, at which he was first seen by his private primary care physician. Further, the June 2012 VA examiner noted that VA treatment records dating back to 2008 noted spikes of 194/83 in September 2008, 224/90 in April 2009, 184/73 in May 2009 and 196/83 April 2012; however, review of the medical notes on those dates did not relate the spikes to any flare in psychiatric symptoms. Furthermore, the examiner noted that the Veteran's blood pressure readings have been essentially unchanged in four years. To that effect, VA treatment records dated from February 2009 to April 2012 reflect the Veteran's diagnoses of hypertension, which had been uncontrolled at times, and his subjective reports of episodes of increased anxiety and elevated blood pressure. He was hospitalized in April and June 2009 due to uncontrolled blood pressure with complaints of anxiety, headaches, and nightmares about his military experience. VA treatment records dated in April 2009 note that the Veteran did not take his blood pressure medicine on the day before his admission and his blood pressure was consistently high. He stated that he would not take his blood pressure medication when his blood pressure returned to normal. The emergency physician in April 2009 noted that anxiety-related issues may or may not be exacerbating his blood pressure problem although the Veteran reported that his blood pressure went up when he had nightmares or thought about the war. In June 2011, the Veteran was initially seen in the VA hypertension clinic. His blood pressure reading were well above his goal blood pressure of 130/80 mmHg. It was noted that the Veteran was very resistant to taking blood pressure medications due to history of intolerance to blood pressure medications. In VA treatment reports dated in December 2011, the Veteran reported increased in anxiety and blood pressure over several days and stated that "it's been like this for 68 years." A VA psychologist and the Veteran discussed the relationship between blood pressure, nightmare and insomnia, if the blood pressure started it vs. nightmare. It was noted that as the blood pressure went up he had acute anxiety reaction. The June 2012 VA examiner addressed the Veteran's private physician's statements that the Veteran's blood pressure clearly exacerbated following nightmares or events in which he experienced manifestations of PTSD, but noted that it was not supported by the Veteran's treatment records or blood pressure readings in relation to psychiatric flares. The examiner added that the connection between a psychiatric disorder and hypertension is difficult to establish except in cases where the psychiatric disorder is controlled and then the hypertension then becomes stable. The examiner also noted that she reviewed a database of Vietnam Veterans that did not support a conclusion that PTSD caused or aggravated hypertension. The Veteran's private primary care physician, Dr. Jonathan Murphy indicated that the Veteran was first seen in August 2006 complaining of episodes of very high blood pressure in the middle of the night after waking from nightmare. It was noted that the Veteran had no current medications at that time. In September 2008, Dr. Murphy indicated that the Veteran had for some time suffered severe headaches and episodes of transient hypertension associated with his episodes of night terrors. Dr. Murphy further noted that in order to fully control the headaches, the posttraumatic stress disorder (PTSD) must be addressed. In August 2010, Dr. Murphy again wrote that the Veteran's medical conditions seemed to stem from a case of PTSD related to his military service. Dr. Murphy recognized that the Veteran's blood pressure was partially controlled; however, it was clearly exacerbated during the night and the following day in which he had nightmares or sequence of events which manifested PTSD. Indeed, Dr. Murphy's opinion is that the Veteran seems to experience transient episodes of elevated blood pressure associated with anxiety disorder. However, Dr. Murphy does not provide an opinion as to whether the Veteran's hypertension is aggravated by his service-connected anxiety disorder, in a sense that hypertension is permanently worsened beyond the natural progression of the disease due to the anxiety disorder. See 38 C.F.R. § 3.310(b) (requiring that a baseline level of severity of a non-service-connected disability be established before service connection may be granted for any permanent aggravation claimed as secondary to a service-connected disability). To the extent, Dr. Murphy's opinion could be read as suggesting that the Veteran's hypertension was directly caused or permanently aggravated by his service-connected anxiety disorder, the Board accords little probative weight to this opinion because it is not supported by any clinical rationale. Further, there is no indication that the private physician ever reviewed the Veteran's entire medical history, as embodied in the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); see also Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for an opinion goes to the weight or credibility of the evidence). Indeed, the record reflects that Dr. Murphy has treated the Veteran only beginning in August 2006. The Board also acknowledges the testimony by the Veteran's wife stating that the Veteran has experienced headaches ever since the very early stage of their marriage in 1946. She also indicated that occasionally, his blood pressure was high when he had the headaches but not all the time. The Board finds her observations to be credible, but not pertinent to the issue of service connection for hypertension. Her statements primarily address her observations of the Veteran's constant headaches and nightmares, which is not currently on appeal. Even if her statements regarding the Veteran occasionally having high blood pressure associated with the nightmares addressed the issue of hypertension, the VA examiners in August 2010 and June 2012 noted that while PTSD may cause temporary elevations in blood pressure, but do not cause or aggravate the Veteran's hypertension. The Board also finds that the Veteran's hypertension did not manifest within one year after separation from service. The Board again notes the 58 year gap between separation from service and the first record of a diagnosis of hypertension. No records show a diagnosis of hypertension prior to 2004. The Veteran's statement that he had hypertension since his military service does not provide evidence of hypertension manifesting to a compensable degree within one year of separation from service. Therefore, service connection for hypertension is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Based on the evidence of record, the Board finds that a preponderance of the evidence is against the claim for service connection for hypertension. As the preponderance of the evidence is against the claim of service connection for hypertension, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs