Citation Nr: 1309123 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 08-22 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active service from May 1975 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In December 2010, the Veteran testified at a Central Office Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In May 2011, this case was remanded for further development. At that time, two other claims for service connection (asthma and sleep apnea) were a component of the appeal. These claims were granted in January 2013. As explained further below, the Board finds there has been substantial compliance with the remand. The issues of a clear and unmistakable error in the May 1996 RO rating decision and entitlement to an effective date earlier than August 7, 2006, for service-connected depression have been raised by the record (see, for example, January 2013 statement), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of the evidence indicates that the Veteran's hypertension was not present in service or for years after service, and there is no competent or credible evidence linking it to any incident of service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service and may not be presumed to have been incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA 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 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in April 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in an August 2008 communication when the Veteran was notified regarding disability ratings and effective dates as directed under Dingess/Hartman, and the claim was thereafter readjudicated several times (see January 2009, March 2009, January 2013 and December 2012 supplement statements of the case or SSOCs). Any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (indicating medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the service). In this case, the service treatment records are silent as to any complaints or treatment for hypertension. Moreover, the post-service evidence does not indicate any current complaints or treatment referable to hypertension until several years following separation. Furthermore, the record contains no competent evidence suggesting a causal relationship between the current disability and active service. The Veteran's statements of continuous symptomatology are not deemed credible here, as will be discussed in more detail below, and thus do not serve to trigger VA's duty to provide an examination. For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. As mentioned previously, in May 2011, the Board remanded this claim for further development, so that 1995 records from Ft. Gillem, Georgia could be requested. In August 2007, the Veteran reported that his complete service treatment records (from Ft. McPherson) disappeared after service. He did have some records that he had saved and sent these copies to VA. In April 2010, he stated he was initially prescribed high blood pressure medications in 1995 while assigned to Ft. Gillem, Georgia. He stated that the Army, via the "Ft. Gillem Medical Treatment Facility" informed him they misplaced his medical records in 1995. In December 2010 at the Board hearing, the Veteran provided information contrary to his earlier statements, indicating that while he still believed the Army lost his records (Transcript, p 4), he did not have any treatment in service for hypertension although he believed it started in the "mid-80s" (Transcript, p 15). He offered no description of any symptoms he had that he believed were related to high blood pressure. Finally, after stating in April 2010 that a facility at Ft. Gillem misplaced records, in January 2013 he denied that Ft. Gillem had a medical treatment center; he now stated the only records outstanding were the ones from Ft. McPherson lost in 1995. The file shows that incomplete service treatment records were received before May 1996 (see May 1996 RO rating). A November 2012, a Personnel Information Exchange System (PIES) response reflects that another file of the Veteran's medical records had been received. These records were from the Fort McPherson Army Medical Center. As explained in the January 2013 SSOC, these records show that the Veteran's personal address was at Ft. McPherson, and the Army Medical Center where he received treatment was at Ft. Gordon. Moreover, a DA Form 5006-R, dated in March 1995, shows that the Veteran was sent a copy of his inpatient records from the Eisenhower Army Medical Center. This was confirmed by a July 1995 letter to the Veteran, indicating that his records were enclosed. In light of the above, the Board finds that there has been substantial compliance with the May 2011 remand. The Board did not find an enlistment examination for the Veteran or records dated in the 1970s (although such records are not necessarily always created). The Board does find that the RO exhausted efforts to find service treatment records over the years (See March 1996 records request, January 2010 Records Management Center email, August 2012 PIES response, and December 2012 report of contact regarding found records). As the Veteran's statements show, he was aware there were partially unavailable records (For one example, see August 2007 statement). The Board finds that further efforts to obtain the service treatment records at this time would be futile. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); When a claimant's treatment records are lost or destroyed, the VA has a heightened duty to assist in the development of the claims. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). However, in this case records from 1982 onward appear to be complete in the file. The Veteran stated at one point he began treatment for hypertension in the "mid-80s." (Transcript, p 15.) He does not appear to allege that hypertension treatment started before that time. The Board will thus proceed with the adjudication of the claim. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Social Security Administration (SSA) records were received. Moreover, his statements in support of the claim are of record, including testimony provided at a December 2010 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the December 2010 Board hearing shows the Veteran gave information regarding his disability and responded to questions aimed at determining whether further information was needed to substantiate the claim. The Veteran has not raised complaints regarding the conduct of the hearing. The Board finds the duties to notify and to assist have been met. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). Service connection for hypertension Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, No. 2011-7184, 2013 WL 628429, 5-6 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Where a veteran served continuously for ninety (90) days or more during a period of war and a chronic disease such as cardiovascular renal disease, to include hypertension, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Hypertension qualifies as a chronic disability where a demonstration of continuity of symptomatology may establish in-service incurrence and a medical nexus under Walker because it is listed in 38 C.F.R. § 3.309(a). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (a medical opinion was not required to prove a nexus between a service-connected mental disorder and drowning which caused death). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, in certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, 21 Vet. App. 303 (concerning varicose veins); see also Jandreau, 492 F. 3d 1372 (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. at 511-512; Madden v. Gober, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Here, the record establishes a current diagnosis of hypertension (see July 2004 Dr. D. record); in-service incurrence and a medical nexus are lacking. Shedden, 381 F.3d at 1167. In this case, the Board finds that continuity of symptomatology does not serve as a basis for the allowance of the claim as hypertension was not noted in service and there is no evidence of post-service continuity of symptoms (there are in fact, no symptoms regarding this disability reported by the Veteran). Walker, No. 2011-7184. Further, the evidence does not show that hypertension was diagnosed within one year from separation. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service treatment records show normal blood pressure levels into the late 1980s (see August 1982, September 1985, April 1988, and July 1989 blood pressure readings). August 1994 records also show normal readings. In February 1995, a pre-admission assessment for surgery did not reflect any hypertension in the medical history section. The Veteran's blood pressure was 115/78 at that time. The pre-anesthetic summary also showed that the Veteran denied hypertension. The recovery flow sheet showed normal blood pressure levels were recorded. March and June 1995 service treatment records also showed readings within normal limits. At separation in December 1995, the report of medical examination (RME) showed a reading of 112/82. He denied high or low blood pressure on the report of medical history (RMH). Post-service, the Veteran also denied high or low blood pressure (see April 1997 private/civil service RMH). Starting in April 1998, however, he began to complain of chronic headaches and on reading was a bit high (151/70); the clinician determined headaches were due to stress. The headaches continued into May, although the readings went down (122/72). In July, the clinician noted increased blood pressure with standing and history of headaches and hypertension was to be ruled out. A five day blood pressure check was accomplished. By September, it was determined that headaches were due to stress. That same month, when filling out an eye general health questionnaire the Veteran denied having ever been treated for high blood pressure or hypertension (or heart disease). It was not until January 2003 a record notes the Veteran had borderline hypertension. A July 2004 record notes a conclusive diagnosis of hypertension. In a September 2005 letter, Dr. D. acknowledged the Veteran's various claims for disability compensation and stated that hypertension started in July 2004. It was noted to be systemic in April 2006; in December it was characterized as essential hypertension. Based on the above facts, the Board finds hypertension did not start in service or within one year from separation from service. See 38 C.F.R. § 3.303, 3.307, 3.309. To the extent the Veteran asserts otherwise, the Board finds him not credible. Indeed, he denied having ever had high blood pressure in service at separation and on other occasions before July 2004. For example, he asserted that he was treated by Dr. D. since 1999 for hypertension in October 2006. Also, in October 2006, he stated on an authorization and consent form that he was treated for hypertension at Ft. McPherson from 1995 to 1997. In April 2010 he claimed he was initially prescribed blood pressure medications in 1995 while assigned to Ft. Gillem, Georgia: "The designation, hypertension was assigned in 1997." However, at the December 2010 Board hearing, he stated he did not have treatment in service for hypertension. (Transcript, p 15.) He thought the disease began in the mid-1980s but did not explain why, except that his family had a history of hypertension. Id. The Veteran's statements conflict each other at various times, rendering them non-probative for lack of credibility. Further, the Veteran denied high blood pressure at the separation examination in December 1995 and hypertension in September 1998. Thus, the lay evidence does not support a grant of service connection here, and the medical records themselves indicate an onset of hypertension after service. For example, the file contains a statement made by Dr. D. that hypertension was not diagnosed until 2004. To the extent the Veteran relies on continuity of symptomatology, the Board finds he has not related any symptoms of hypertension. This is not surprising, given that hypertension is not an immediately observable disability such as a broken leg or varicose veins (disabilities mentioned or at issue in Jandreau and Barr). Hypertension, colloquially known as "the silent killer," is more like the cancer example cited in Jandreau. See, 492 F.3d at 1377, Footnote 4. Indeed, even medical experts require blood pressure readings and other tests to determine its presence and severity. The Board finds the Veteran is not competent on the issue of etiology or aggravation as medical expertise is required for such determinations. Additionally, his statements have been inconsistent to the point where credibility has been eroded. Caluza, 7 Vet. App. at 511-512. Weighing the evidence, the Board finds that service connection is not warranted for hypertension. It is not warranted on a direct basis because the evidence shows the hypertension began after service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(d). The presumption similarly does not apply because hypertension is not shown to have started within one year of service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. ORDER Service connection for hypertension is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs