Citation Nr: 1310524 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 09-09 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to non-service connected pension benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran had active duty service from November 1971 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. The Veteran requested a hearing in his substantive appeal. He was scheduled for a hearing in March 2013, but failed to appear. He has not otherwise asserted good cause for missing the scheduled hearing, so his hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d) (2012). A review of the Virtual VA paperless claims processing system shows that VA treatment records through November 2012 are of record. The RO considered these updated VA treatment records in the December 2012 Supplemental Statement of the Case. FINDINGS OF FACT 1. Hypertension is not attributable to the Veteran's period of military service or manifested within a year of separation from service. 2. The Veteran is gainfully employed. CONCLUSIONS OF LAW 1. The Veteran does not have hypertension that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7101, note 1 (2012). 2. The criteria for receipt of non-service-connected pension benefits have not been satisfied. 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 4.17 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision has been accomplished for both issues on appeal. Through an April 2007 notice letter, the RO notified the Veteran and his representative of the information and evidence needed for the Veteran's claim of service connection and non-service connected pension. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the April 2007 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his claims. Consequently, a remand for further notification of how to substantiate the claims is not necessary. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran's service treatment records (STRs) and pertinent VA treatment records have been obtained and associated with the claims file, including a comprehensive report of all available VA treatment records in Virtual VA. The Board has considered the Veteran's assertion that some STRs are missing when he returned from Germany. See March 2009 Substantive Appeal. However, the available STRs appear complete and include Frankfurt 97th General Hospital records. The records custodian did not otherwise indicate that any STRs were missing. The Board finds the Veteran's assertion of missing STRs to be without merit. The Veteran was not afforded a VA examination for either claim. In service connection claims, VA is obliged to provide an examination or obtain a medical opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. As explained below, multiple STRs show normal blood pressure readings. These findings make the Veteran's reports that he was informed about high blood pressure in service incredible. The lay and medical evidence does not otherwise show an in-service event, injury, or disease to which hypertension could be related. The record also shows that the Veteran first developed hypertension many years following service. For these reasons, the Board finds that a VA examination is not necessary to adjudicate this claim, even under the low threshold for finding a link between current disability and service. Id. For the pension claim, the Veteran does not meet the threshold income criteria at anytime during the pendency of the appeal. A remand for an examination will not be of further assistance in substantiating his pension claim. 38 C.F.R. § 3.159(d). Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. Hypertension Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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); 38 C.F.R. § 3.303. For chronic disabilities listed under 38 C.F.R. § 3.309(a), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, __ F.3d__, No. 2011-7184, 2013 WL 628429 (Fed. Cir. February 21, 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Hypertension is a chronic disability recognized under 38 C.F.R. § 3.309(a) and the continuity of symptomatology provisions are applicable. Id. Under 38 C.F.R. § 3.303(b), 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). If a chronic disorder, such as hypertension, manifests to a compensable degree within one year after separation from service, it may be presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, as will be discussed in detail below, the Board finds that hypertension did not develop until many years following service. Thus, the presumption is not helpful in this case. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); 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"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (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")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran asserts that he has hypertension that is attributable to his active military service. Specifically, he contends that elevated blood pressure readings were documented throughout his service treatment records (STRs) and that he has, since that time, had problems with high blood pressure. Thus, the Veteran believes that service connection is warranted. At the outset, the Board notes that in accordance with VA rating criteria, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 n.1 (2012). A diagnosis of hypertension "must be confirmed by readings two or more times on at least three different days." Id. STRs do not show any evidence of hypertension. The Veteran's blood pressure was noted to be within normal limits on multiple occasions, including his March 1971 entrance examination (110/68) and at an August 1978 separation examination (114/68). Several additional STRs show blood pressure readings within normal limits. See STRs dated February 1976 and March 1977. VA treatment records, dated in January 2003, show a blood pressure reading of 117/61. In June 2005, the Veteran had 110/65 blood pressure and was assessed as having benign essential hypertension. Subsequent VA treatment records show that the Veteran had hypertension that had become poorly controlled. See August 2007 VA treatment records. Through 2012, VA treatment records include numerous findings of elevated blood pressure. However, the Veteran had only two blood pressure readings, both occurring in November 2011, which met the VA diagnostic criteria for hypertension. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 n.1 (2012). In several written statements, the Veteran reported that medical providers informed him about high blood pressure readings in service. In his March 2009 substantive appeal, he asserted that some of his STRs were missing en route from Germany. He stated that these STRs would confirm hypertension. Even assuming a current hypertension diagnosis meeting VA criteria has been demonstrated, the evidence supporting a nexus is limited to the Veteran's assertions. See id. It is the Board's responsibility to evaluate the probative value of such evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (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."). The Veteran is competent to report on his medical history and recollection of diagnoses made by healthcare providers. Layno, 6 Vet. App. at 469. Nonetheless, his assertions must be considered in light of the remaining evidence of record. Caluza, 7 Vet. App. at 510-511. The STRs include several findings of blood pressure within normal limits. Even at separation, the Veteran was again shown to have blood pressure within normal limits. There is no evidence that any STRs are missing. The Board finds the Veteran's reports of having elevated blood pressure or hypertension in service to be implausible in light of the STRs and more recent VA treatment records showing an initial assessment of hypertension in June 2005. See id. Furthermore, the elevated blood pressure readings found in most of the VA treatment records do not approximate the VA diagnostic criteria for hypertension. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 n.1 (2012). In summary, the competent medical evidence does not otherwise show or in any way suggest elevated blood pressure readings or hypertension during active service or manifest within a year of separation. 38 C.F.R. §§ 3.303, 3.307, 3.309. No competent evidence otherwise links hypertension to service. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is consequently not helpful to the Veteran, and the claim of service connection for hypertension must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. Non-service-connected pension benefits Non-service-connected pension benefits are payable to a Veteran who served for ninety (90) days or more during a period of war, which is not in dispute here, and who was permanently and totally disabled due to nonservice-connected disabilities that are the not the result of his own willful misconduct. 38 U.S.C.A. § 1521; see also Dilles v. Brown, 5 Vet. App. 88, 89-90 (1993) and cases cited therein. If a Veteran's combined disability is less than 100 percent, he must be unemployable by reason of disability. 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4, see also Brown v. Derwinski, 2 Vet. App. 444, 446 (1992). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321 (a), Part 4. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. To be eligible for VA pension, the evidence of record must demonstrate that the Veteran is permanently and totally disabled by disabilities that are the not the result of his own willful misconduct. For the purposes of pension benefits, the person shall be considered to be permanently and totally disabled if such individual is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or is suffering from (1) any disability which is sufficient to render it impossible for the average person to obtain a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person; or (2) any disease or disorder determined by the VA Secretary to be of such nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. See 38 U.S.C.A. § 1501 (a); 38 C.F.R. §§ 3.340 (b), 4.15. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). For purposes of 38 C.F.R. § 4.17, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.17(a). According to the U.S. Census Bureau's Housing and Household Economics Statistics Division, the poverty threshold for one person under 65 years of age was $11,945.00 in 2012. This figure is applicable as the Veteran is currently under 65 years of age and reports being single without dependents. The Veteran is gainfully employed. His reported annual income on his March 2007 application was $25,527.00 from employment as a truck salesman. He has not asserted unemployment during the pendency of the appeal or otherwise demonstrated marginal employment. He has not reported unreimbursed medical expenses that would reduce his annual income to below the threshold. In short, the evidence does not show that the Veteran unable to secure and follow substantially gainful employment. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not helpful to the Veteran, and the claim for a non-service-connected pension must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Service connection for hypertension is denied. Entitlement to nonservice-connected pension benefits is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs