Citation Nr: 1311334 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-48 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 2003 to June 2003, and from April 2006 to December 2007. This appeal comes before the Board of Veterans' Appeals (hereinafter the Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. FINDINGS OF FACT 1. Hypertension was not identified during the Veteran's first period of active service, or on the examination when the Veteran was accepted for entrance into his second period of service. 2. Hypertension was demonstrated during active service and after. CONCLUSION OF LAW Hypertension was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. II. Laws and Regulations Service connection will be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). In order to establish service connection for the claimed disorder, there must be (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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). If a listed chronic disease, such as hypertension, is identified in service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b) (2012). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was clearly and unmistakably not aggravated. See 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). "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 pre-existence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is treated as one for ordinary service connection. Wagner. III. Facts and Discussion Records pertaining to the Veteran's first period of active service contain no findings indicative of hypertension. On a report of medical history completed in March 2006 for retention in the Army reserve, the Veteran reported a history of high blood pressure and that he was taking Lisinopril. On examination the same day, his heart and vascular system were found to be normal and his blood pressure was 152/88. There was no finding of hypertension. In April 2006, the Veteran was ordered to active duty. While the record does not explicitly state that the March 2006 examination was to determine suitability for active service deployment, its timing is consistent with such an interpretation. Because hypertension was not identified on the examination when the Veteran was accepted for active service, the presumption of soundness applies. There is clear and unmistakable evidence that hypertension pre-existed active service. The Veteran reported prior to his second deployment that he was taking Lisinopril, a hypertension medication and that he had a history high blood pressure. The VA examiner noted in March 2010, that hypertension was identified at a VA examination in March 2006 with blood pressures of 186/94. More recently the Veteran has asserted that hypertension was incurred as a result of his deployment in Iraq, but the overwhelming evidence is that hypertension was identified after the first period of active service and before the second. In any event, the evidence is not clear and unmistakable with regard to the second prong of the presumption of soundness. The service treatment records show that his medications were adjusted upward, and the VA examiner cited this adjustment as evidence that the current hypertension was related to "his service time." Because the presumption of soundness is not rebutted, the claim is treated as one for service connection rather than compensation based on aggravation. Wagner. Hypertension was identified in service and in private treatment records and the VA examination report after service. Although post-service blood pressure readings have not been at levels meeting the definition of hypertension, he has been on significant anti-hypertensive medications at all times since March 2006. Cf. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The fact that hypertension was reportedly diagnosed by VA in March 2006, and that there was a systolic blood pressure reading of 186/94, suggests that the Veteran was found to have hypertension prior to service consistent with the criteria contained in Diagnostic Code 7101, Note (1). As a chronic disease, service connection is warranted for hypertension if identified in service and at any time thereafter. 38 C.F.R. § 3.303(b). Such is the case here. The criteria for service connection are met and the claim is granted. ORDER Entitlement to service connection for hypertension is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs