Citation Nr: 1309931 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-16 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant (Veteran) represented by: Fleet Reserve Association ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to January 1970, and from March 1970 to October 1971. He served in the Republic of Vietnam from January 1969 to January 1970, and from April 1970 to October 1971, and was awarded a Combat Action Ribbon for service there. The record also indicates that the Veteran served in the naval reserves following discharge from active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that it has reviewed the evidence of record to include the Veteran's virtual VA claims file. No evidence has been added to the record since the supplemental statement of the case issued in this matter in March 2012. FINDINGS OF FACT 1. The Veteran did not manifest symptoms of hypertension until May 1975, over three years after discharge from active service. 2. Chronic hypertension is not shown to have been present in service, or for nearly three years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service, including his presumed exposure to Agent Orange while serving in Vietnam. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active duty service, and is not presumed related to service. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA must provide notice and assistance to claimants for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Veteran was provided with notification letters in December 2008 and March 2009. The letters informed the Veteran of the evidence and information necessary to substantiate his claim for service connection, and informed the Veteran regarding his and VA's respective responsibilities in obtaining evidence and information. In accordance with Dingess/Hartman, the letters informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date. Further, the letters were provided to the Veteran prior to the initial unfavorable AOJ decision issued in May 2009. With regard to VA's duty to assist, the record indicates that in each notification letter, the RO requested from the Veteran information regarding medical evidence pertaining to his claim for service connection. The record shows that the RO included in the claims file relevant private treatment records and reports. Furthermore, the Veteran underwent VA compensation examination into his claim in February 2012, a report of which is of record. In the report, the VA examiner detailed the nature and severity of the Veteran's hypertension, indicated a review of the claims file, and noted findings based on the Veteran's lay statements, on the evidence of record, and on the examination of the Veteran. The findings are supported by data and reasoned explanations (even though, for the legal reasons detailed below, the Board disagrees with the examiner's ultimate conclusion regarding the issue of service connection). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In sum, the Board finds that VA's duties to notify and assist have been substantially met. Any errors committed were not harmful to the essential fairness of the proceeding. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim for service connection. The Claim for Service Connection The Veteran claims service connection for hypertension. He asserts that he incurred hypertension due to his presumed exposure to herbicides while serving in Vietnam from 1969 and 1971. See 38 C.F.R. § 3.309(e). The RO denied the Veteran's claim in the May 2009 rating decision on appeal. The evidence of record demonstrates that the Veteran currently has hypertension. A February 2012 VA compensation examination report of record notes such a diagnosis, as do private treatment records dated between May 1975 and May 2003. However, for the reasons set forth below, the Board finds that a service connection finding is not warranted in this matter. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Certain disorders, such as hypertension, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and who has one of the listed diseases under 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Effective August 31, 2010, 38 C.F.R. § 3.309(e) provides that where a Veteran was exposed to an herbicide agent during active military, naval, or air service in the Republic of Vietnam, the following diseases shall be service connected, even though there is no record of such disease during service: chloracne, or any other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes mellitus, or adult-onset diabetes); Hodgkin's disease; ischemic heart disease, including, but not limited to, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (to include coronary spasm) and coronary bypass surgery, and stable, unstable, and Prinzmetal's angina; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (i.e., cancers of the lung, bronchus, larynx, or trachea); all chronic B-cell leukemias (including, but not limited to hairy-cell leukemia and chronic lymphocytic leukemia); or soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). Based on the Veteran's documented service in Vietnam between 1969 and 1971, which is evidenced by several documents in the claims file, the Veteran is presumed to have been exposed to herbicides during service. Id. However, hypertension is not a disorder listed under 38 C.F.R. § 3.309(e). Moreover, the noted revision specifically provides that the term ischemic heart disease does not include hypertension, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Id. As such, presumptive service connection for hypertension due to exposure to herbicides is not warranted under 38 C.F.R. § 3.309(e). The Board has also reviewed the record to determine whether a direct service connection finding would be warranted under 38 C.F.R. § 3.303, or a presumptive service connection finding under 38 C.F.R. § 3.309(a) for chronic diseases. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996). A service connection finding would not be warranted under either theory of entitlement, however. For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104 , Diagnostic Code 7101 (2012). Under the code, service connection for pre-hypertension is not warranted when an examiner diagnoses pre-hypertension based on readings not recognized in Diagnostic Code 7101. VA Adjudication Procedures Manual, M21-MR, III.iv.4.E.20.33 (2012). The Veteran's service treatment records are negative for hypertension, and contain blood pressure readings of 136/86 in December 1965, 124/86 in January 1970, and 132/82 in March 1970. His separation report of medical examination is negative for hypertension, and contains a blood pressure reading of 120/80, which the February 2012 VA examiner characterized as "very normal." There is no evidence indicating onset of hypertension in the first year of discharge from service (i.e., between January 1971 and January 1972). 38 C.F.R. §§ 3.307, 3.309. A December 1973 report of medical examination, apparently conducted pursuant to the Veteran's reserve service, indicates a blood pressure reading of 138/88. And the earliest evidence indicating diagnosis and treatment of hypertension is dated in the May 1975, over 3 years following the Veteran's discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the Board may consider "evidence of a prolonged period without medical complaint, along with other factors."). As none of the blood pressure readings - dated between commencement of active service in August 1966 and January 1972, the one-year anniversary of separation from active service - approximates the criteria noted under DC 7101, service connection on a direct basis under 38 C.F.R. § 3.303, or on a presumptive basis under 38 C.F.R. § 3.309, is unwarranted here as well. The Board notes some confusion in the record as to whether the Veteran's reserve service following separation from active duty in January 1971 may form the basis for a service connection finding. Specifically, the February 2012 VA examiner referred to the 138/88 blood pressure reading in December 1973 as "borderline" and then stated that, as that reading may have been "an early manifestation" of hypertension, and was noted during reserve service, the Veteran's hypertension was as likely as not incurred in service. The law is squarely against finding service connection based on the December 1973 blood pressure reading, however. The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law." 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2012). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2012). Thus, with respect to the Veteran's reserve service after January 1971, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or for an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process, such as hypertension. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, such as hypertension, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. §§ 101, 1112, (West 2002); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2012). However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). In this matter, service connection is not warranted based on the Veteran's reserve service because no medical evidence indicates onset of hypertension during ACDUTRA. As indicated, the December 1973 blood pressure reading, ostensibly noted during a period of reserve service, merely indicates pre-hypertension - i.e., a reading that is not hypertension under DC 7101. VA Adjudication Procedures Manual, M21-MR, III.iv.4.E.20.33 (2012). Second, hypertension is a disease, and not an injury - so evidence of onset of hypertension during a period of ACDUTRA would be necessary to find service connection warranted based on reserve service. However, there is no evidence of record that the Veteran experienced an onset of hypertension during a period of ACDUTRA at some time following his separation from active duty in January 1971. The Board recognizes the May 1975 diagnosis of hypertension noted in private medical evidence may have coincided with the Veteran's status as a member in the naval reserves. However, that medical evidence cannot be construed as evidence documenting onset of the disorder during a specific period of ACDUTRA. As such, a service connection finding for hypertension is unwarranted based on a period of reserve service as well. Finally, the Board notes that it has considered the Veteran's lay contentions of record that his hypertension is related to service. The Veteran has been consistent in his several statements of record regarding the nature of his service, and regarding the onset of his symptoms. Based on this consistency, the Board considers the Veteran a credible witness. See Caluza, 7 Vet. App. at 511-12 (indicating that the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Further, as a layperson, the Veteran is competent to report symptoms that fall within the realm of his experience. He is competent to offer evidence regarding symptoms that are observable to him. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). However, the crucial questions before the Board concern issues regarding medical causation and diagnosis. These are complex medical issues about which the Veteran is not a competent witness. The development of hypertension regards an internal disease pathology of the heart and vascular system, which is beyond the Veteran's capacity of observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his theories regarding the date of onset of his hypertension, or the etiology of the disorder, are of limited probative value. In sum, the preponderance of the evidence of record indicates that the Veteran's hypertension is not related to his active service that ended in 1971, or to any reserve service afterward. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As such, service connection is not warranted for hypertension. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and the doctrine of reasonable doubt, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs