Citation Nr: 1312425 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-15 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease (CAD). ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from June 1960 to June 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which in pertinent part denied service connection for hypertension. In October 2012, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDING OF FACT Hypertension was not present in service nor diagnosed within a year of service discharge; and, the competent and credible evidence fails to establish an etiological link between the Veteran's diagnosed hypertension and his active service or a service-connected disability. CONCLUSION OF LAW Hypertension, was not incurred in or aggravated during active duty, is not proximately due to or the result of a service-connected disability, and its incurrence or aggravation during active duty may not be presumed. 38 U.S.C.A. §§ 1101, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a May 2009 letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He was also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, VA treatment records, and private treatment records. No outstanding records have been identified that have not otherwise been obtained. Furthermore, in accordance with the Board's remand directives, the Veteran underwent a VA examination in November 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are more than adequate, as they are predicated on a full reading of the service, private, and VA medical records. The opinion also considers the Veteran's lay statements and provides rationale for its conclusions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The claim was also remanded to obtain VA outpatient treatment records for the period since June 2011. Such was accomplished. Accordingly, the remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). In sum, the Board finds that VA has complied with the VCAA's notification and assistance requirements and the appeal is ready to be considered on the merits. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 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). 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). Direct service connection may not be granted without evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of 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. In addition, hypertension may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Hypertension means diastolic blood pressure predominantly 90mm or greater, and isolated systolic hypertension means systolic blood pressure that is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 CFR § 4.104, Note (1). Further, as hypertension is recognized as chronic under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that his currently diagnosed hypertension is related to his exposure to Agent Orange in Vietnam. He has also reported that his hypertension is secondary to his service-connected CAD. Service treatment records are negative for any evidence of high blood pressure or hypertension during active duty or at the time of the Veteran's discharge in May 1968. His blood pressure at the time of service separation was 136/86. There is also no evidence of hypertension being diagnosed until 2001, which is over 30 years after service. Put another way, there is no objective medical evidence showing that hypertension manifested in service or was diagnosed within one year of service discharge. The Veteran does not necessarily dispute this finding. He also makes no allegation of continuity of symptomatology. Moreover, as the Veteran lacks the medical expertise to render a medical diagnosis of hypertension, which will be discussed in greater detail below, he also lacks the competence to even make a continuity of symptomatology argument. Service connection is thereby not warranted under a theory of direct service connection, under the presumption set forth under 38 C.F.R. § 3.309(a), or based the continuity of symptomatology provision of 38 C.F.R. § 3.303(b). The Board now turns to the question of whether there is evidence to support the Veteran's argument that his hypertension was caused by his active service, to include herbicide exposure, or caused or aggravated by his service connected heart disability - CAD. The post-service medical evidence of record, which includes VA and private treatment records, documents treatment for hypertension and coronary artery disease since 2001. Social Security Administration records show that the Veteran has been disabled due to ischemic heart disease and essential hypertension since September 2001. These records do not indicate that the Veteran's hypertension is related to his active military service. The Veteran was afforded a VA examination in November 2012. The Veteran reported that he had a heart attack in November 2001, and that at that time, he was also diagnosed with high blood pressures. The examiner noted that the Veteran had been treated at the VA since July 2002, and that he had a past history of CAD, obesity, hypertension, and hyperlipidemia. The examiner diagnosed hypertension, and noted that it was first diagnosed in 2001. The examiner opined that the hypertension was less likely than not (less than a 50 percent probability) caused by the claimed in-service injury, event, or illness. This conclusion is supported by and consistent with the evidence of record, and there is no contrary medical opinion of record. Indeed, the examiner emphasized that the claims file was silent for any complaints of, or treatments for, elevated blood pressure prior to 2001, and that his May 1968 service discharge examination recorded the Veteran's blood pressure as being 136/86. The November 2012 examiner also gave a negative opinion with regard to a relationship between the Veteran's hypertension and his service-connected CAD. He noted that systemic arterial hypertension was diagnosed in March 2008, and that hypertension may be primary (as a result of environmental or genetic causes) or secondary, which has multiple etiologies, including renal, vascular, and endocrine causes. However, after a review of the medical literature, which he cited, the examiner concluded that CAD is not one of the causes of hypertension. The examiner also stated that the Veteran's hypertension was not at least as likely as not aggravated beyond its natural progression by the service-connected condition. In rendering this opinion, he noted that the Veteran's hypertension was well controlled by medication, and was diagnosed at the same time as his heart attack in October 2001, and there was no documentation of the Veteran suffering a heart attack or stroke due to hypertension. He also noted that there were no chronically elevated blood pressures found during review of the claims file, including VA treatment records. There is no medical opinion against that of the VA examiner, and that opinion was based on an accurate history and supported by an implicit rationale; it is thus adequate. Consideration has been given to a June 2008 private treatment record that described the Veteran's hypertension as "arterial" and stated that it was "underlying" his coronary artery disease. Such suggests a relationship between the Veteran's hypertension and his service-connected heart disability. However, the negative VA opinion, which clearly addressed the causation and aggravation question, far outweighs this rather vague notation that provided no rationale. In fact, in light of the findings made by the VA examiner, the June 2008 would appear to suggest the opposite, i.e. that the Veteran's hypertension was the cause of his CAD. The Board notes that there is medical literature that concludes that there is a strong and consistent link between hypertension and CAD, and that hypertension is in fact a risk factor for CAD. The Veteran also asserts that the hypertension is a result of exposure to Agent Orange during active duty in Vietnam. Under certain circumstances, service connection for specific diseases may be presumed if a Veteran was exposed during service to certain herbicides, including Agent Orange. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309(e) (2012). If a Veteran was exposed to Agent Orange or another herbicide agent, service connection for any of the conditions listed under 38 C.F.R. § 3.309(e) will be presumed if the condition becomes manifest to a degree of 10 percent disabling or more. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A Veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran served in Vietnam from 1960-1968. He is presumed to have been exposed to an herbicide agent during that service. However, where VA has presumed service connection for the Veteran's coronary artery disease based on his herbicide exposure during service, hypertension is not subject to a presumption of service connection based on herbicide exposure. It is not included in the conditions listed at 38 C.F.R. § 3.309(e) for which service connection may be presumed. Service connection thus may not be presumed for the Veteran's hypertension based on his herbicide exposure. The unavailability of presumptive service-connection, however, does not mean that service connection cannot be granted for a disease that is shown by at least an equipoise standard of evidence to have been caused by exposure to an herbicide agent during active service or to have been otherwise caused by or had onset during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, no competent or credible lay or medical evidence has been presented to support of the Veteran's lay assertions that the claimed hypertension is due to Agent Orange exposure. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, hypertension outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Hypertension is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that the diagnosis of hypertension requires the performance of blood pressure readings and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report symptoms such as fatigue or headaches, there is no indication that the Veteran is competent to diagnose hypertension or etiologically link his current diagnosis of hypertension to service (including herbicide exposure) or a service-connected disability. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating cardiovascular disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The only medical opinions of record addressing the claimed relationship between the Veteran's hypertension and service and his service-connected CAD are negative. No competent medical opinion linking his hypertension to service or his service-connected disability has been presented. The VA examiner considered the Veteran's lay assertions in forming his medical opinions, but ultimately found that the Veteran's current hypertension was not related to service or his service-connected disability. Thus, the medical evidence of record is only against the Veteran's claim. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Service connection for hypertension is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs