Citation Nr: 1312849 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-09 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket. The Veteran, who is the appellant, had recognized guerrilla service from May 1945 to November 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In April 2011, the Veteran failed to appear for a hearing before the Board, and his request for a hearing is deemed withdrawn. In August 2011, the Board remanded the case for additional development. As the requested development has been completed, no further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The current hypertension did not have onset in service, hypertension as a chronic disease was not manifest to a compensable degree within the one-year period following separation from service, and hypertension is not otherwise related to an injury, disease, or event in service, including a blood pressure reading of 92/48. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter in August 2008. The VCAA notice included the type of evidence needed to substantiate a claim of service connection, including secondary service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records on his behalf. The VCAA notice included the general provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records and private medical records. The Veteran was afforded a VA examination in December 2011 to obtain an opinion on the relationship between the post-service hypertension and the blood pressure reading in service. As the opinion of the VA examiner is based on a review of the Veteran's history and as medical analysis was applied to the facts of the case to reach the conclusion rendered in the opinion, the opinion is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The RO attempted to obtain complete service treatment records from the National Personnel Records Center, but records were unavailable. The RO notified the Veteran of the unavailability of the service treatment records in a letter in January 2012. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish entitlement to VA disability compensation, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110, as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for specifically listed chronic diseases, including hypertension, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts The service medical records show that on examination in October 1945 the blood pressure reading was 92/48. Hypotension was noted. After service, private medical record show that in March 1982 the blood pressure reading was 180/96 and hypertension was diagnosed. In May 1984 the blood pressure reading was 186/94 and hypertension was diagnosed. In September 1997 there was a 16 year history of hypertension. In December 2004, the Veteran was treated for hypertension. In July 2005, history included hypertension. In August 2008 history included treatment of hypertension since 2005. On VA examination in December 2011, after a review of the Veteran's file, the VA examiner stated that the blood pressure reading on 92/48 in October 1945 was definitely not consistent with hypertension, as hypertension is blood pressure readings higher than 120/80. The VA examiner stated that hypotension rather than hypertension had been diagnosed in October 1945. The VA examiner expressed the opinion that the elevated blood pressure readings after service were less likely than not related to the blood pressure reading of 92/48 in October 1945. Analysis The service medical records show that on examination in October 1945 the blood pressure reading was 92/48. Hypotension not hypertension was diagnosed. There was no evidence of blood pressure readings predominantly elevated and no diagnosis of hypertension. 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; the term hypertension means that diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90 mm.). On the basis of the service treatment record hypertension was not affirmatively shown to have been present during service and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. As hypotension is not a chronic disease listed in 38 C.F.R. § 3.309(a), the theories of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38 C.F.R. §§ 3.303(b), 3.309(a)). Although the current hypertension was not affirmatively shown to be present in service and as chronicity and continuity of symptomatology do not apply, service connection may still be established based on an initial diagnosis after service under 38 C.F.R. § 3.303(d). The Veteran is competent to describe symptoms of elevate blood pressure since service. See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether hypertension was present in service is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation as the diagnosis of hypertension falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose hypertension. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). Where, as here, there is a question of the diagnosis of hypertension, which is not capable of lay observation, to the extent the Veteran's lay statements are offered as proof of the presence of hypertension in service the Veteran's lay statements are not competent evidence, and the Veteran's lay statements are not admissible as evidence, that is, the Veteran's lay statements are not to be considered as competent evidence that hypertension was present in service. To the extent the Veteran relates hypertension to service, while the Veteran as a lay person is competent to offer an opinion on a simple medical condition, whether there is a causal relationship or nexus between the current hypertension and hypotension in service is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation as causation falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. Jandreau, 492 F.3d at 1377. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to render an opinion on a causal relationship or nexus between the current hypertension and hypotension. See King, 700 F.3d at 1345 (the Board may find that lay evidence to establish medical causation is not competent evidence). For this reason, the Veteran's lay evidence is not competent evidence of a causal relationship or nexus between the hypertension diagnosed after service and hypotension in service. Since the Veteran's lay evidence is not competent evidence, the Veteran's lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As the Veteran's statements are not competent evidence, the Board need not address credibility. As the Veteran's lay evidence is not competent evidence on the questions of either a diagnosis of hypertension or etiology of hypertension, the Board looks to the medical evidence. Medical Evidence As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to an initial post-service diagnosis, applying 38 C.F.R. § 3.303(d), the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). No medical professional had diagnosed hypertension before 1982, more than thirty-five years after service separation in 1945 and well beyond the one-year period for presumptive service connection for hypertension as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309. And no medical professional has related post-service hypertension to hypotension in service. The only medical evidence, addressing the etiology of hypertension is the opinion of a VA examiner, a physician, who is qualified by education, training, or experience to offer a medical opinion. After a review of the Veteran's file, including the single notation of a blood pressure reading of 92/48 and hypotension in service, the VA examiner stated that the blood pressure reading of 92/48 was definitely not consistent with hypertension, as hypertension is blood pressure readings higher than 120/80. The VA examiner stated that hypotension rather than hypertension had been diagnosed in October 1945. The VA examiner expressed the opinion that the elevated blood pressure readings after service were less likely than not related to the blood pressure reading of 92/48 in October 1945. As the opinion of the VA examiner was based on a review of the Veteran's history and provided a rationale for the conclusion reached in the opinion, the Board finds that the opinion is persuasive evidence, which opposes, rather than supports, the claim on the question of whether the post-service hypertension is related to the hypotension in service. As the medical opinion opposes, rather than supports, the claim, and as there is no medical evidence in favor of the claim, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for hypertension is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs