Citation Nr: 1309999 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 07-24 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In January 2011, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In May 2011, the Board remanded this matter for additional development. FINDINGS OF FACT The Veteran's currently diagnosed hypertension was first identified many years after service and the only medical opinion evidence has found that the Veteran's hypertension is not related to service and not caused or aggravated by the Veteran's service-connected psychiatric disability. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to service-connected PTSD, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in August 2008. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent May 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination and opinion with respect to the claim remaining on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Initially, the Board notes that the Veteran's service records demonstrate that he served in the Republic of Vietnam in the Vietnam era and is presumed to have been exposed to herbicides during service. However, hypertension is not a presumptive disease based on exposure to herbicides. 38 C.F.R. § 3.309(e) (2012). Accordingly, entitlement to service connection on a presumptive basis due to having been exposed to herbicides is not warranted. Service connection may be granted on a direct basis for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be presumed for certain chronic diseases, including hypertension, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. 3.307, 3.309(a) (2012). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. That 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. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim for a chronic presumptive disability. 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. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488 (1997). The Veteran contends that his diagnosed hypertension is related to service, or in the alternative is due to or aggravated by his service-connected PTSD. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either proximately due to or the result of an already service-connected disease or injury or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (2012). Hypertension is defined as diastolic blood pressure of predominantly 90 or greater, or systolic blood pressure of predominantly 160 or greater with a diastolic blood pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). The service medical records show that the Veteran was referred for a blood pressure evaluation in July 1968. He was noted to have had daily episodes of epitaxis on the left side. His blood pressure was noted to be 170/100 and 150/80 on five readings. No further references to elevated pressure were contained in the records. The Veteran's blood pressure was recorded as 130/78 at his May 1970 separation examination. The Veteran denied high or low blood pressure on a report of medical history form prepared in conjunction with the separation examination. No diagnosis of hypertension is contained in the service medical records. VA medical records dated from October 2004 to March 2010 show that the Veteran was diagnosed with hypertension in November 2004. In May 2008, the Veteran was noted to have hypertension which was not well-controlled on medication. He was noted to have been taking Lisinopril and hydrochlorothiazide was added to the medication regimen. During the January 2011 Board hearing, the Veteran testified that he began having problems with his equilibrium in service and was informed that he had hypertension problems at that time. He testified that he sought treatment for hypertension within ten months of separating from service. He reported that his VA records documented his diagnosis and he took oral medication for his hypertension. The Veteran testified that his physician at VA indicated that his service-connected PTSD may have adversely affected his blood pressure. In June 2011, the Veteran underwent a VA hypertension examination. The Veteran reported that his first elevated blood pressure recording occurred in Vietnam and he was prescribed salt tablets at that time. He also stated he was given medications for hypertension. On physical examination, the Veteran's blood pressure was 153/90 in his left arm sitting, 152/89 in his right arm sitting, and repeat in his left arm was 150/88. The examiner noted that the claims file had been reviewed and that hypertension was not present on physical examination of 1966 and was not present on the Veteran's physical when departing from service. The examiner stated that he felt the Veteran had essential hypertension, controlled on his current medication. The examiner thought that the hypertensive events that the Veteran experienced while in service in the field represented labile hypertension. Currently, he had no symptomatology that the VA examiner could relate to high blood pressure. The examiner opined that the Veteran's essential hypertension at that time was unrelated to his service experiences and it was not felt to be as least as likely as not related to or aggravated by his military experience nor to his service-connected PTSD. In March 2012, the claims file was returned to the examiner for a rationale for the prior opinion. In April 2012, the prior VA examiner indicated that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in service injury, event, or illness. The examiner noted the prior opinion and said that it was poorly stated. The examiner clarified that what he was attempting to opine was that the Veteran's essential hypertension was not at least as likely as not related to either his active duty service or his PTSD nor was it aggravated beyond its natural progression by his active duty service. The rationale with respect to a relationship between high blood pressure and PTSD was that he knew of knew of no studies that had drawn an etiologic relationship of PTSD to being a cause of hypertension. With respect to the hypertension being documented while in service, the examiner was unable to find in the Veteran's claims file any documentation of either hypertension or treatment for hypertension while in service, nor could he find documentation of a diagnosis of high blood pressure or treatment for hypertension within one year of his discharge from active service. Hypertension was not present on his physical examination of 1966, nor was it noted on his discharge physical examination. That was, in essence, the rationale stated in his June 2011 examination. The Board finds that the evidence of record does not support a finding of service connection for hypertension. Initially, the blood pressure readings during service do not demonstrate hypertension as defined by VA regulation. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). There is no evidence that the Veteran had diastolic blood pressure that was predominantly 90 or greater, or systolic blood pressure that was predominantly 160 or greater with a diastolic blood pressure of less than 90. The Veteran is first shown to be diagnosed with hypertension in November 2004, as shown in VA medical records, more than 30 years after discharge from service. That time period is well beyond the presumptive period for establishing service connection for hypertension as a chronic disease. 38 C.F.R. §§ 3.307, 3.309 (2012). Furthermore, the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Moreover, the Board notes that the only medical opinion to address the medical relationship, if any, between the Veteran's hypertension and service, to include his service-connected PTSD, weighs against the claim. The June 2011 VA examiner, who also clarified his opinion with a rationale in April 2012, opined that the Veteran's hypertension was not related to service and was not related to or aggravated by his service-connected PTSD. The Board finds that VA examiner's opinions constitute probative evidence on the medical nexus question, based on review of the Veteran's documented medical history and assertions and physical examination as well as consideration of medical literature. Those opinions provided clear rationales based on an accurate discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for hypertension, on a presumptive, direct, or secondary basis. Adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The only evidence in support of the Veteran's claim is his own contentions and those of his representative. However, there is no indication that the Veteran or his representative possesses the requisite medical knowledge or education to render a probative opinion involving medical causation between his hypertension and service, or in the alternative, his service-connected PTSD. Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, his statements regarding his hypertension are insufficient to establish a nexus to service or his service-connected PTSD. The Board notes that under certain circumstances lay statements may support a claim for service connection by reporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the Board finds no basis for concluding that the Veteran is competent to establish the etiology of his hypertension in the absence of specialized training. To the extent that the Veteran reported having an incident in service related to blood pressure, that incident was found the examiner to not be related to his current hypertension. The Board finds the examiner's opinion more persuasive because of the medical training of the examiner. Accordingly, the preponderance of the evidence of record is against a finding that the Veteran's hypertension is related to service, to include as secondary to or aggravated by his service-connected PTSD. As there is not an approximate balance of positive and negative evidence regarding the merits of the appellant's claim that would give rise to a reasonable doubt in favor of the appellant, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs