Citation Nr: 1311856 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-45 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for hypertension with headaches, claimed as secondary to service-connected degenerative changes of the lumbar spine with severe limitation of motion. 2. Entitlement to a rating in excess of 40 percent for degenerative changes of the lumbar spine with severe limitation of motion. 3. Entitlement to a rating in excess of 10 percent for sensory changes of the right lower extremity associated with disability of the lumbar spine. 4. Entitlement to a total rating due to individual unemployability based on service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied service connection for hypertension with headaches and denied increased ratings for degenerative changes of the lumbar spine and sensory changes of the right lower extremity as well as a TDIU, respectively. The Virtual VA paperless claims processing system does not contain additional evidence relevant to this appeal. The issues of entitlement to increased ratings for degenerative changes of the lumbar spine and sensory changes of the right lower extremity and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDING OF FACT For the entire appeal period, the Veteran does not have a current diagnosis of hypertension with related headaches. CONCLUSION OF LAW The criteria for service connection for hypertension with headaches are not met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an October 2009 letter, sent prior to the initial unfavorable decision issued in December 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, to include on a secondary basis, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In this regard, the Board notes that the record reflects that the Veteran was denied Social Security Administration (SSA) disability benefits. Even so, the AOJ attempted to obtain such records; however, SSA indicated that they were unavailable. The AOJ made a formal finding of unavailability and notified the Veteran in September 2009. In an October 2009 statement, the Veteran indicated that he did not receive SSA benefits. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Veteran was afforded a VA examination in November 2009 with respect to the issue of service connection for hypertension with headaches and general medical examinations in December 2009 and February 2011. Neither the Veteran nor his representative has alleged that the examinations are inadequate for adjudication purposes. Moreover, the Board finds that the VA examinations are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record or an accurate summary of his pertinent history; and a physical examination with diagnostic testing. Following certification of the appeal to the Board, in June 2012, a record of telephone contact with the Veteran was added to the claims file. At that time, a separate appeal for increased ratings was under development, but was not yet before the Board. The Veteran reported that he was scheduled for an imaging study and physical therapy and that the records of this care were pertinent to that appeal. The Board concludes that imaging studies and physical therapy are not relevant to a diagnosis and etiology of hypertension as they are medical procedures relevant to the lumbar spine disability that is the subject of the remand below. Therefore, the Board finds that additional examinations for hypertension are not required. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and/or opinion regarding the issues decided herein has been met. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran served as a U.S. Navy machinist mate with duty aboard a destroyer. He contends that he has hypertension with headaches as secondary to his service-connected degenerative changes of the lumbar spine with severe limitation of motion. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, hypertension is recognized as a chronic disease. Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Hereafter, all blood pressure measurements are expressed as systolic divided by diastolic pressure in units of millimeters of mercury (mmHg). For the purposes of the regulation section for rating the disease, the term hypertension means that the diastolic blood pressure is predominantly 90, or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160, or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records, including a February 1978 enlistment physical examination and a January 1982 discharge physical examination, are silent for any symptoms, diagnoses, or treatment for hypertension. The Veteran denied a history of high blood pressure on medical history questionnaires associated with both examinations. Blood pressure measurements obtained in VA examinations in October 1982 and June 1985 were normal. The Veteran has been receiving periodic VA outpatient medical care since 1993. A limited number of single blood pressure measurements were recorded during these years of treatment. The measurements were predominantly normal but with occasional elevated measurements such as 150/96 in June 1993 and 138/90 in May 2006. In July 2009, a VA primary care nurse practitioner (NP) noted that blood pressure was elevated at 151/85. The NP issued a blood pressure cuff for the Veteran to monitor his pressure at home and provided instructions that the Veteran was to call for follow-up if the measurements were consistently 140/80 (presumably that value or higher). The NP did not diagnose hypertension or prescribe medication. The NP did advise changes in diet and increased exercise because of elevated serum cholesterol. In the Veteran's next primary care encounter in September 2009, the NP noted normal blood pressure with no further comment. The same month, the Veteran underwent a general medical examination. The examiner noted a review of the claims file and the Veteran's report of low back pain, limitation of motion, and radiating pain to the lower extremities. Three blood pressure measurements were 124/78, 126/82, and 128/84. The Veteran did not report higher readings obtained at home, and the examiner did not diagnose hypertension. The examination record is silent for any reports by the Veteran or observations by the examiner of chronic headaches. In an October 2009 claim, the Veteran noted that his blood pressure went up whenever he moved around. He also noted that his back pain was constant and that his blood pressure measurements averaged 180/94 that remained high even without movement. He noted his belief that the back pain caused high blood pressure and that medication helped but did not last long. As the VA records showed prescriptions for pain medication but not for high blood pressure, the Board concludes that the Veteran was referring to medication that relieved back pain. In November 2009, the Veteran underwent a VA hypertension examination. The VA examiner noted a review of the claims file and the Veteran's self-reports of high blood pressure with a history of headaches related to hypertension. The examiner noted that the diagnosis of hypertension had not been previously established. Blood pressure was measured two or three times on each of three days. Measurements on day one were 136/80 and 140/88; on day two 136/91 and 130/78; and on day three 128/68, 151/85, and 136/84. The examiner concluded that there was no clinical evidence of sustained elevated blood pressure measurements, but noted isolated systolic hypertension. However, she further explained that the Veteran exhibited elevated systolic pressure intermittently, but the measurements did not meet the criteria for a diagnosis of hypertension. The examiner concluded that hypertension did not exist in the Veteran. In a December 2009 notice of disagreement, the Veteran reported that, because his blood pressure was high during movement and normal when not moving, his hypertension was caused by low back pain. In a February 2011 VA general medical examination, another VA examiner noted that the Veteran's low back and radicular pain symptoms had not substantially changed since his previous examination in 2009 and manifested as constant pain with sharp, severe flare up pain two to three times per week lasting minutes to hours. The NP did not note any reports by the Veteran of home blood pressure measurements concurrent with constant or flare-up back pain. The NP noted no history of hypertension. The NP noted pain and limitation of motion on examination of the spine but three blood pressure measurements obtained during the examination were normal. The NP did not include hypertension or isolated systolic hypertension in a listing of problems, diagnoses, and functional effects. The examination record is silent for any reports by the Veteran or observations by the examiner of chronic headaches. The Board concludes that service connection for hypertension with headaches, claimed as secondary to service-connected degenerative changes of the lumbar spine with severe limitation of motion is not warranted because the Veteran does not have a current diagnosis of hypertension. In this regard, as noted previously, the medical evidence, to include VA treatment records and VA examination reports, are negative for a diagnosis of hypertension. While the Veteran is noted to have isolated systolic hypertension, the November 2009 VA examiner indicated that such was only intermittent and did not meet the criteria for a diagnosis of hypertension. The Board accords great probative weight to the VA examiner's opinion as such was predicated on an interview with the Veteran, a review of his treatment records, and a physical examination, to include diagnostic testing. Moreover, the November 2009 VA examiner's opinion contained clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board accords great probative weight to the November 2009 VA examiner's opinion. There is no contrary medical opinion of record. The Board notes that the Veteran has contended on his own behalf that he currently has hypertension with related headaches that is the result of his service-connected back disability. In this regard, lay evidence may, in some circumstances, establish a medical diagnosis, causation, or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, in the instant case, while the Veteran is competent to report his home blood pressure measurements that are constantly elevated to an average level of 184/94, he is not competent to state that such readings result in a diagnosis of hypertension. In this regard, as indicated previously, the term hypertension means that the diastolic blood pressure is predominantly 90, or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160, or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. Therefore, as diagnosing hypertension or isolated systolic hypertension requires a medical conclusion resulting from the interpretation of blood pressure readings taken on different days, and there is no indication that the Veteran has the appropriate medical training to interpret the results of his blood pressure readings, the Board finds that he is not competent to diagnose such disease. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, as the Veteran does not have a current diagnosis of hypertension with related headaches at any time during the appeal period, service connection on a direct, presumptive, or secondary basis is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for hypertension with headaches. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his service connection must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for hypertension with headaches is denied. REMAND In a May 2011 rating decision, the AOJ denied increased ratings for degenerative changes of the lumbar spine with severe limitation of motion and sensory changes of the right lower extremity as well as a TDIU. Thereafter, in July 2011, the Veteran submitted a notice of disagreement to the AOJ as to the denial of such claims. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on these issues is needed. Manlincon v. West, 12 Vet. App. 238 (1999). However, these issues will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with a statement of the case regarding the issues of entitlement to increased ratings for degenerative changes of the lumbar spine and sensory changes of the right lower extremity and entitlement to a TDIU. Advise them of the time period in which to perfect his appeal. If the Veteran perfects his appeal of these issues in a timely fashion, then return the case to the Board for its review, as appropriate. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs