Citation Nr: 1310063 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 05-28 833A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, including as secondary to already service-connected Type II Diabetes Mellitus (DMII). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1968, including a tour in Vietnam. This appeal to the Board of Veterans' Appeals (Board) is from August 2004 and July 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The August 2004 decision, in relevant part, temporarily deferred deciding the Veteran's claim for service connection for hypertension, including as secondary to his diabetes. But the RO subsequently denied this hypertension claim in the July 2005 decision. The Board remanded this derivative claim for hypertension in September 2010 for further development and consideration, including especially providing additional notice required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), affirmed sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), to obtain the Veteran's outstanding VA treatment records, and then to have him undergo a VA compensation examination for a medical nexus opinion concerning the nature and etiology of his claimed hypertension, particularly insofar as concerning its claimed relationship to his military service, such as by way of his already service-connected DMII. The Board more recently issued a decision in June 2012 granting another claim the Veteran also had appealed - for service connection for a left ankle disorder. The Appeals Management Center (AMC) effectuated that grant in a rating decision later in June 2012. The Veteran has not since, in response, separately appealed either the initial rating or effective date assigned for his left ankle disorder, so that claim is no longer at issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). As concerning his claims that remained, the June 2012 Board decision again remanded his claims for service connection for hypertension and a left leg disorder for still further development and consideration, including especially for supplemental VA medical opinions regarding the etiology of these disorders and, in particular, their potential relationship to his military service. In a December 2012 rating decision since issued, the AMC also granted his claim for service connection for a left leg or foot disorder, specifically, left foot equinus. And since he has not, in response, separately appealed either the initial rating or effective date assigned for this left foot disorder, this claim also is no longer at issue. See Grantham, at 1158-59. The AMC continued to deny his remaining claim for hypertension in a supplemental statement of the case (SSOC) also issued in December 2012, so this claim, which is the only one left to be decided, is again before the Board. FINDING OF FACT The most competent and credible, so ultimately probative, evidence indicates the Veteran's hypertension did not originate during his active military service or for many years after and is unrelated to his service, including secondarily since not caused and not being permanently exacerbated by his service-connected DMII. CONCLUSION OF LAW His hypertension is not due to disease or injury incurred or aggravated during his active military service, may not be presumed to have been incurred in service, and is not proximately due to, the result of, or aggravated by his service-connected DMII. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a),(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified in part at 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence he is expected to provide. The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that, to the extent possible, the VCAA notice should be provided to the claimant before an initial unfavorable decision on the claim. Pelegrini at 119-20. If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, in March 2004 and May 2004, so prior to initially adjudicating this claim in the June 2005 rating decision at issue, therefore in the preferred sequence, the Veteran was provided this required VCAA notice. An additional VCAA letter was more recently sent in October 2010. These letters, especially in combination, indicated the types of information and evidence needed to substantiate his claim and explained the division of responsibility between him and VA in obtaining this supporting evidence, including lay evidence and both private and VA medical treatment records. He also received notice in October 2010 concerning the "downstream" disability rating and effective date elements of his claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). As well, he was provided an SOC in August 2006 and SSOCs in April 2012 and December 2012 readjudicating his claim, so since even the provision of this additional notice regarding these "downstream" elements of his claim. See again Mayfield and Prickett, supra. And as concerning the duty to assist him with this claim, all relevant evidence necessary for an equitable resolution has been identified and obtained, to the extent possible. The evidence of record includes some copies of the Veteran's service personnel information, Social Security Administration (SSA) records, private medical records, VA outpatient treatment records, the reports of his VA compensation examinations, including the medical nexus opinions obtained, and statements from him and his representative. His service treatment records (STRs) are unavailable. Indeed, all efforts made by the RO and AMC to locate them were unsuccessful. A Memorandum Finding of Unavailability of Service Medical Records, detailing the attempts made to locate these records, was issued by the RO in June 2004. The memorandum indicated these records had been destroyed and that a rebuilt folder was necessary to proceed with this claim. When, as here, the Veteran's STRs are unavailable or incomplete, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). See also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having the Veteran complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)). But having said that, the Board must also point out that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection for hypertension by suggesting a correlation between this claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). In a December 2004 letter, the RO informed the Veteran that his STRs were fire-related and therefore requested that he provide any other alternative ("substitute") records related to his service. No additional information regarding his service or STRs was received, although he submitted several lay statements and some copies of his service personnel records (SPRs), but mostly pertaining instead to his claims for service connection for posttraumatic stress disorder (PTSD) and the left ankle and left leg/foot disorders that since have been granted. Aside from his claim for residuals of an appendectomy, only this claim for hypertension has not been granted, despite the missing records concerning his service. The October 2004 VA examination report and the June 2012 VA addendum opinion report, taken together, reflect that the examiners reviewed the Veteran's relevant medical history, documented his current medical condition, and rendered appropriate diagnoses and opinions consistent with the evidence of record and with supporting rationale, which is where most of the probative value of an opinion is derived. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the Board concludes that the medical examination and addendum opinion provide the information needed for deciding this claim for hypertension. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). As will be discussed, the Board's June 2012 remand found impermissible the basis of an intervening November 2010 VA examiner's opinion, hence, the need to remand for the addendum opinion that since has been obtained. In Mariano v. Principi, 17 Vet. App. 305 (2003), the Court indicated it "would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case." See Mariano, at 312. But the Court distinguished Mariano in Douglas v. Shinseki, 23 Vet. App. 19 (2009). In Douglas, the Court acknowledged its decision in Mariano, but held that VA may undertake the development of additional evidence if, as here, it is necessary to render an informed decision on the claim. Douglas, at 26. With this in mind, the Board remanded this claim in June 2012 for a supplemental VA medical nexus opinion regarding the etiology of the Veteran's hypertension and any potential relationship with his military service - either directly, presumptively, or secondarily by way of his already service-connected DMII. And as the VA examiner on remand reviewed the claims file and provided the opinions requested, he therefore complied with the Board's remand instructions when providing this VA addendum opinion later in June 2012. This examiner did not specifically follow the Board's June 2012 remand instruction to provide an opinion as to the likelihood of whether the Veteran's hypertension initially manifested during his military service, within one year thereafter, or otherwise was attributable to his service. With respect to this instruction, the June 2012 VA examiner instead found that hypertension was not aggravated beyond its natural course by the Veteran's military service, so seemingly on the premise that it had pre-existed his service, which is not shown to have been the case. The presumption of soundness when entering service attaches where there has been an induction examination during which the disability about which the Veteran later complains was not detected, meaning not "noted". See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that even "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id., at (b)(1). As was further explained in Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009), the only prerequisite to applying the presumption of soundness when entering service is that the military induction examination have been free and clear of the later claimed of disability. When there is this presumption of soundness when entering service, to rebut this presumption VA must show by clear and unmistakable evidence both that the condition preexisted service and that it was not aggravated during or by the Veteran's service, that is, beyond its natural progression. See VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence".). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). This patently is not the situation here. This, however, notwithstanding, a more careful reading of the rationale of this medical opinion explains that hypertension is cardiac input times peripheral vascular resistance, which this VA examiner concluded was unaffected by the Veteran's military service, and therefore provides an explanation as to why the Veteran's hypertension was not incurred in or otherwise related to his active service because of the nature of this disease. In addition, as also discussed in further detail below, there is no evidence of hypertension in the record until approximately 2003, when an initial diagnosis was provided. Therefore, the Board is satisfied that the development requested in its June 2012 remand has now been satisfactorily completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance). But see, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where Board's remand instructions were substantially complied with; in other words, there does not have to be "exact" compliance). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication there exists any additional evidence that has a bearing on this claim that has not been obtained. The Veteran and his representative have been provided ample opportunity to present evidence and argument in support of this claim. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Governing Statutes, Regulations and Precedent Cases Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303(a), 3.306. To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and, in turn, link the currently claimed disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms. See Savage, 10 Vet. App. at 495-97. Certain diseases like hypertension are considered chronic (i.e., permanent), per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Since hypertension is amongst the conditions listed in § 3.309(a) as being chronic, it is subject to this continuity of symptomatology pleading exception provided by § 3.303(b). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Service connection also may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation, however, the Veteran is only compensated for the amount of disability he has over and above that existing prior to the aggravation. In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent." Savage, 10 Vet. App. at 497. However, although prong (3) does not require medical nexus evidence, because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that for non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements). The Veteran is competent to report on what he can observe and feel through his senses. See Layno. When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). But once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court/CAVC) similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, 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 when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. Analysis In statements during the pendency of this appeal, the Veteran has maintained that his current hypertension is secondary to his service-connected DMII. In addition, he mentioned during his October 2004 VA examination that he had known about his hypertension since the mid-1970s. He later specified in his August 2005 NOD and September 2005 Substantive Appeal (on VA form 9) that he had reported to the October 2004 VA examiner that he was asked how long he felt he had hypertension and he indicated in response that he believed he had had hypertension and high blood pressure for over 20 years, so since he got out of the Marine Corps. As already acknowledged, there are no STRs to consider, so none as concerning the Veteran's blood pressure while in service in terms of whether it was elevated or persistently elevated to have been suggestive of hypertension. His DD Form 214 indicates he served in the U.S. Marine Corps from August 1964 to August 1968 and that his military occupational specialty (MOS) was administrative, with a related civilian occupation of office manager. This record also reflects that he had one year, two months, and 12 days of foreign and/or sea service. A March 2004 response from the National Personnel Records Center (NPRC), which is a military records repository, indicates he had served in Vietnam from November 1967 to August 1968. The post-service evidence includes private medical records from January 2005 and April 2005, SSA records, Vet Center Records, lay statements from family, friends and co-workers, VA outpatient treatment reports from May 2001 to July 2006 and VA examinations. The lay statements provided by the Veteran's family, friends and co-workers from August to October 2004 do not include any discussion of his hypertension or related symptoms. While neither the private medical records nor Vet Center records reflect any complaints, treatment or diagnosis of hypertension, the VA outpatient treatment reports from May 2001 to July 2006 reflect hypertension initially was diagnosed in December 2003. The Veteran resultantly began receiving treatment for this disease, and it was included on the list of his ongoing and active health-related problems. A November 2003 VA outpatient treatment report reflects that he also complained of hypertension reportedly existing as early as 2002, although a diagnosis was not made at the time of this report. During his October 2004 VA examination, the Veteran reported that he had known about his hypertension since the mid 1970s, so back to more contemporaneous to when he was in service since, as mentioned, his service ended in August 1968. The examiner assessed the Veteran as a very pleasant 59 year old gentleman who had served bravely in the country of Vietnam and was known to have hypertension since the mid 1970s, but was diagnosed with diabetes in 2002. He concluded there was no evidence of any diabetic nephropathy and, at that point, it was unlikely that the Veteran's hypertension was secondary to diabetes but, instead, more likely idiopathic in nature. In addition, the examiner found that the Veteran was not really limited by his hypertension or diabetes; his exercise level was 10 to 12 METS and there was no evidence of hypertensive heart disease. A July 2005 statement was provided from the Veteran's treating physician at the VA, Dr. J.G., M.D. In this statement, Dr. J.G. reported the Veteran was then currently under her care for diabetes and hypertension and, in her opinion, it was as likely as not that his hypertension was secondary to diabetes. She did not provide any supporting rationale for associating the hypertension with the diabetes. A February 2006 SSA letter reflects that the Veteran was awarded SSA disability benefits. Included with the SSA records were VA outpatient treatment reports from May 2001 to July 2005, which, as noted above, indicate he was treated for and diagnosed with hypertension as early as 2002/2003. During a November 2010 VA examination, the Veteran's acknowledged that the date of onset of his hypertension was unknown and that the course since onset has been intermittent with remissions. His initial blood pressure was recorded as 100/60 mmHg, and blood pressure measurements to confirm the diagnosis of hypertension were 100/60 mmHg, 104/62 mmHg and 106/64 mmHg. He was diagnosed with hypertension. The examiner opined that the hypertension however was less likely than not related to the Veteran's diabetes. He explained that the hypertension, instead, was most likely a result of the Veteran's age rather than diabetes and he could not find suggestion of treatment for diabetes or hypertension during the Veteran's service. The Board's June 2012 remand found the basis for that November 2010 VA examiner's opinion impermissible because the Veteran's DMII was service connected on the premise that it was presumptively associated with his military service and, in particular, his presumed exposure to Agent Orange in Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Therefore, the Board concluded there necessarily need not have been any treatment for diabetes during the Veteran's service. The Board also found the November 2010 VA examiner had failed to address whether hypertension was alternatively aggravated by the service-connected DMII or whether hypertension was directly incurred during the Veteran's service or presumptively incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Regarding the notion of entitlement to secondary service connection, two opinions are required for these type claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b). In the June 2012 addendum opinion resultantly obtained, a VA examiner found that the Veteran's hypertension was less likely than not aggravated by his DMII, explaining that the Veteran's renal (kidney) function was normal and there were no other co-morbid conditions. This examiner also found that the Veteran's hypertension was not aggravated beyond its natural course by his military service. This examiner reasoned that hypertension is cardiac output times peripheral vascular resistance, which was not affected by the Veteran's military service. As already conceded, this VA examiner did not specifically follow the June 2012 Board remand instruction, language wise, to provide an opinion as to the likelihood the Veteran's hypertension initially had manifested during his military service, within the one-year presumptive period after the conclusion of his service, or otherwise was related or attributable to his service, but instead found that the hypertension was not aggravated beyond its natural course by the Veteran's military service. The gist of this examiner's opinion, however, in explaining that hypertension is cardiac input times peripheral vascular resistance, unaffected by the Veteran's service, is that it is unrelated to his service. An etiological opinion has to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). The mention therefore in this instance of the hypertension not being "aggravated" by the Veteran's service seems, in actuality, to be the examiner's feeble means of dissociating the hypertension from the Veteran's service, either as directly or presumptively incurred in service or as otherwise related to his service, since also not caused or aggravated by his service-connected diabetes inasmuch as there is not the seemingly necessary indication of renal (kidney) dysfunction that would suggest a correlation between the hypertension and DMII. So, after considering the evidence of record as a whole, the Board concludes that service connection for hypertension, including as secondary to the DMII, is unwarranted. Although there is no disputing the Veteran has hypertension and is service connected for DMII, the most competent and credible (and therefore ultimately probative) lay and medical evidence of record does not provide the required linkage between his current hypertension and either his military service or his service-connected DMII. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also Allen, 7 Vet. App. 439. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In considering the July 2005 medical opinion provided by the Veteran's VA treating physician, the October 2004 VA examination and opinion and the June 2012 VA addendum, the Board affords greater weight to the October 2004 VA examination and opinion and the June 2012 VA examiner's opinion as both were based on a review of the claims file, the Veteran's reported history, their own medical expertise, and are consistent with the evidence of record. Most significantly, the VA examiners provided explanation for their conclusions, whereas the VA treating physician did not, only instead made a summary finding without any supporting rationale. The discussion of the underlying rationale is where most of the probative value of an opinion is derived. Indeed, review of the claims file does not substitute for a lack of a reasoned analysis and explanation for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). See also 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"). The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). There is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors that have had occasion to treat or evaluate the Veteran over time. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993). Indeed, to the contrary, although the Board may not ignore the opinions of treating clinicians, the Board is free to discount the probative value of these statements so long as the Board provides adequate reasons and bases for doing this. Sanden v. Derwinski, 2 Vet. App. 97, 100-01 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Board therefore is affording the October 2004 and June 2012 VA examiner's opinions greater probative weight than the July 2005 opinion of the Veteran's VA treating physician. Thus, although there is no doubting the Veteran has hypertension, he does not also have the supporting medical nexus evidence etiologically linking his hypertension to either his service or his service-connected DMII. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also Allen, 7 Vet. App. 439. The October 2004 and June 2012 VA examiner's opined that it was unlikely the Veteran's hypertension was secondary to his diabetes, instead, more likely idiopathic in nature, also that his hypertension was less likely than not caused or aggravated by his DMII as his renal function was normal and there were no other co-morbid conditions and since hypertension was cardiac output times peripheral vascular resistance, which was unaffected by his service. These opinions contain the required discussion of the underlying bases for them and resultantly have greater probative weight than the July 2005 opinion by the Veteran's VA treating physician that is deficient in these critical regards. The post-service medical evidence of record also does not show evidence of complaints or treatment for hypertension until 2002/2003; so not until approximately 34 to 35 years after the Veteran's separation from service. And while this, alone, is not altogether determinative or dispositive of whether he had hypertension during those several intervening years dating back to his service, it is nonetheless probative evidence tending to refute this notion. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). He indicated during his October 2004 VA examination that he had known about his hypertension since the mid-1970s, and he reiterated this in his August 2005 NOD and September 2005 VA Form 9 by clarifying that he had reported to the October 2004 VA examiner that he believed he had had hypertension and high blood pressure for over 20 years since he got out of the Marine Corps because he was a nervous wreck at the time. He also as mentioned has additionally attributed his hypertension to his DMII. The Board cannot reject this lay testimony concerning this out of hand. Kahana, 24 Vet. App. 428, (indicating the Board cannot make categorical exclusions of competency of lay evidence, such as in this circumstance; rather, there has to be discussion of the reasons and bases for rejecting the lay evidence). Cf. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Ultimately, though, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The Veteran's mere belief (that he "knew" or "felt") that he has had hypertension since the mid-1970s, so since far more contemporaneous to his service that ended in 1968, is insufficient to establish this as fact. He is not competent to provide a diagnosis of hypertension himself or to relate his hypertension to his DMII, as hypertension falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Because hypertension is determined by objective means, namely, the measurement of blood pressure over a specified period of time and having sufficiently elevated blood pressure that persists, the Veteran cannot determine he has it or had it during his service or even within the one-year presumptive period following his service merely by his subjective belief or lay statements to this effect. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), indicating hypertension must be confirmed by blood pressure readings taken 2 or more times on at least 3 different days. Moreover, there is no indication by the Veteran's statements or in the record that a contemporaneous medical diagnosis was provided of either high blood pressure or hypertension and no reports of lay observable symptoms at any time that could be supported by a later diagnosis by a medical professional, as hypertension and high blood pressure are not lay observable symptoms. See id.; see also Jandreau, 492 F.3d at 1377. To the extent the lay statements by the Veteran are attempting to ascribe certain symptoms to a particular or specific diagnosis of hypertension, he is not competent to make this distinction. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). In addition, the Board observes that throughout the record the Veteran also continued to ascribe his hypertension to his DMII, something that he also is not competent to do. See Jandreau, 492 F.3d 1372. Even to the extent that they may be considered competent, the lay statements by the Veteran indicating that he knew he had hypertension since the 1970s and felt he had hypertension and high blood pressure since he got out of the Marine Corps ultimately are not credible as they are internally inconsistent. He reported during the October 2004 VA examination, and has asserted throughout the pendency of this appeal, that his hypertension was secondary to his DMII, which was not initially diagnosed until 2002. In his November 2003 claim, he also reported that his high blood pressure disability initially had begun in February 2003. Also, the November 2003 VA outpatient treatment report reflects that he also complained of hypertension, reportedly as early as 2002, approximately 34 years after his military service had ended. In addition, these statements are wholly inconsistent with the medical evidence of record indicating hypertension was initially diagnosed in 2003, approximately 35 years after the conclusion of his service. Moreover, his STRs, even if available, could only at most have established elevated blood pressure or hypertension during his service, not also during the years immediately subsequent to the conclusion of his service in 1968 until he says he first learned he had it during the mid or so 1970s. Thus, his lay statements that he knew of his hypertension since the 1970s or that he felt he had hypertension or high blood pressure for over 20 years since he got out of the Marine Corps are not ultimately probative. Notably, the rather recently reported history of a history of hypertension or high blood pressure since the 1970s or since service is not supported by his earlier statements in the record or by any post-service medical evidence prior to the initial showing of this condition. See Cromer v. Nicholson, 19 Vet. App. 215 (2005); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) ("in a merits context the lack of evidence of treatment may bear on the credibility of the evidence of continuity"). The medical records cited are highly probative both as to his subjective reports and their resulting objective findings. They were generated with a view towards ascertaining his then state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Accordingly, the lack of contemporaneous evidence in this instance diminishes the reliability of the lay statements provided by the Veteran that he knew he had hypertension since the 1970s or that he felt that he had hypertension or high blood pressure since he got out of the Marine Corps and they are afforded no probative value. For these reasons and bases, the evidence does not demonstrate any connection between the Veteran's hypertension and his military service, either directly or presumptively, or secondarily between his hypertension and his service-connected DMII. Thus, his claim of entitlement to service connection for this condition must be denied since the preponderance of the evidence is against his claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable, even with the heightened obligation to explain all the evidence of record given that the STRs are unavailable, including those most favorable to him. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); See Ussery, 8 Vet. App. 64; see also Russo v. Brown, 9 Vet. App. 46. ORDER Service connection for hypertension, including as secondary to DMII, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs