Citation Nr: 1313021 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 06-29 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1956 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Honolulu, Hawaii. In May 2010, the Board noted that the claim for service connection for hypertension was subject to a stay pending issuance of new regulations governing the presumption of service connection for ischemic heart disease. In September 2011 and again in October 2012, the Board remanded the issue of service connection for hypertension for additional evidentiary development. The September 2011 remand order required the agency of original jurisdiction to afford the Veteran a VA medical examination regarding the etiology of his claimed hypertension. Such an examination was afforded him in February 2012. The October 2012 remand requested the RO obtain an addendum to the February 2012 VA medical opinion. This addendum was received in November 2012. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam in 1970 and 1971. 2. No vascular injury, disease, or chronic symptoms of hypertension were manifested during service. 3. The Veteran did not continuously manifest symptoms of hypertension in the years after service. 4. Hypertension was not manifested to a degree of ten percent within one year of service separation. 5. The Veteran's hypertension is not caused by any in-service event, including herbicide exposure, during service. CONCLUSION OF LAW Hypertension was not incurred in service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board finds that in this case VA has satisfied its duties to notify under the VCAA. In March 2004, March 2006, October 2006, February 2008, and November 2012 letters, the Veteran was notified of the general information and evidence needed to substantiate and complete a service connection claim. Additionally, the March 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The initial notice was issued prior to the adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the service treatment records, as well as VA medical treatment records. The Veteran was also afforded a VA medical examination in February 2012, with a November 2012 addendum. The Board notes that the VA medical evidence contains sufficiently specific clinical findings, informed discussion of the pertinent history and clinical features of the disability on appeal, and pertinent medical opinions regarding the origins of hypertension; thus, the medical evidence is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received; thus, adjudication at this time is warranted. Service Connection for Hypertension The Veteran seeks service connection for hypertension. He asserts this disorder had its onset during active duty service or manifested to a compensable degree within a year thereafter, and has been chronic since that time. He has also asserted that he had service in Vietnam, with herbicide exposure therein, resulting in his current diagnosis of hypertension. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, hypertension is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. 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 90mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Next, the Board notes that the Veteran has claimed service in Vietnam during his active duty period. See 38 C.F.R. § 3.309(e). VA is bound to consider all pertinent theories of service connection, whether or not a theory is raised by a veteran. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). Thus, the Board must consider whether service connection for hypertension as due to herbicide exposure is warranted. Any Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. If the Veteran was exposed to an herbicide agent during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes colitis or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi's sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). While ischemic heart disease is noted to be a presumptive disorder under 38 C.F.R. § 3.309(e), this term does not include hypertension. 38 C.F.R. § 3.309(e), Note 3. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Regarding the Veteran's service in Vietnam, the Board notes that, while his DD Form 214 does not list any medals or decorations confirming such service, his service personnel records indicate a June 1970 transfer to a naval base in Saigon, Vietnam; thus, his presence in Vietnam in 1970 while on active duty is confirmed. Concerning the question of in-service disease or injury, service treatment records reflect few occasions on which blood pressure readings were recorded. These records reveal an August 1971 examination at which time the Veteran's blood pressure was 128/86. The June 1975 service separation examination report reveals a reading of 138/90. Thus, while the Veteran's blood pressure was elevated in service, the reading at separation does not meet VA's definition of hypertension, as that definition requires that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Additionally, a diagnosis of hypertension was not provided by any medical examiner at that time. When the Veteran's claim was presented to a VA examiner in February 2012, the examiner noted the Veteran's in-service blood pressure readings, to include on his June 1975 service separation examination. The examiner also opined, however, that "one elevated [blood pressure] measurement does not mean that a person has hypertension"; rather, medical follow-up is required to verify such a diagnosis. Based on the examiner's review of the claims file and examination of the Veteran, the examiner opined it was less likely than not that the Veteran's hypertension had its onset during service. Upon review of the claims file, a VA physician also opined in November 2012 that it was less likely than not that the Veteran's hypertension had its onset during active service. That examiner opined that "isolated elevated blood pressure readings in the presence of normal blood pressure readings is most likely a normal reaction phsyiologic conditions" rather than an indication of hypertension at that time. In the absence of competent evidence to link the Veteran's current hypertension to service, the Board finds that hypertension was not incurred during service. The Board finds that hypertension did not manifest to a compensable (10 percent) degree within a year of service separation. Post-service medical treatment records contain a January 1977 report with a blood pressure reading of 140/96. A recheck of the Veteran's blood pressure in one week was recommended, but with no follow-up reading is of record. A January 1978 evaluation shows a reading of 120/88. A March 1980 family practice clinic note shows a blood pressure reading of 126/88. A treatment note in May 1981 shows a reading of 150/100. A follow-up in June 1981 shows a reading of 148/102. A treatment note in July 1981 shows a reading of 154/120 with a diagnosis of hypertension. Medication was prescribed. Thus, while there is a reading in January 1977 that is hypertensive under VA regulations, this is only a single reading, and the first diagnosis of hypertension does not appear until July 1981, approximately six years after service separation, though elevated blood pressure readings are demonstrated at service separation and since service separation. As noted above, the Veteran was afforded a VA examination in February 2012. The examiner noted that blood pressure is affected by factors such as dietary salt intake, sedentary lifestyle, smoking, stress, obesity (particularly visceral obesity), alcohol intake, Vitamin D deficiency, aging, some inherited genetic mutations, a family history of hypertension, an elevated level of renin, and sympathetic nervous system overactivity. The VA examiner reviewed the claims file and confirmed an initial diagnosis of hypertension in July 1981, more than a year after his July 1975 service separation. Additionally, the November 2012 VA physician reviewed the post-service blood pressure readings, which were both "normal" and "mildly elevated" at various times before 1981. Based on these findings, he opined these were "isolated elevations of blood pressure" which, because they were followed by "normal blood pressure recordings," were not indicative of hypertension. The physician found no competent evidence to support a diagnosis of hypertension prior to 1981. Thus, based on the uncontroverted opinions of two competent medical experts, the Board concludes the Veteran's hypertension did not manifest to a compensable degree within a year of service separation. The Veteran has asserted that his hypertension began during active duty service, or manifested to a compensable degree within a year thereafter. Though a layman, he is competent to report observable symptomatology which comes to him via his senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Lay testimony on the question of current hypertension to service is not competent in the present case, because the Veteran is not competent to state that hypertension was incurred in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). Such a diagnosis requires clinical blood pressure readings which are neither found within the record during or immediately following his service period, and are not alleged by the Veteran. Additionally, an opinion of etiology would require knowledge of the complexities of the cardiovascular system, the various causes of unobservable hypertension, and would involve objective clinical testing that the Veteran is not competent to perform. The Veteran has also not alleged that he was told of a diagnosis of hypertension by a competent expert prior to 1981. The Board finds that the Veteran did not experience continuous symptoms of hypertension since service separation. The Veteran did not report or seek treatment for hypertension for many years following service separation. This lengthy period without complaint or treatment is evidence, along with other factors, that there has not been ongoing symptomatology since service, and weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Other factors that show no continuous post-service symptomatology include that, when the Veteran first filed a compensation claim in August 1975, he did not claim hypertension or report high blood pressure or a diagnosis of hypertension at that time. The fact that the Veteran did not mention hypertension upon filing his initial compensation claim or for many years thereafter further indicates that he did not have chronic or ongoing symptoms of hypertension and/or was not aware of a diagnosis of this disorder. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, in this case, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for hypertension, when viewed in the context of his action regarding another claim for compensation for other disorders, may reasonably be interpreted as indicative of the Veteran's belief that he did not have onset of hypertension in service and did not have such symptomatology at the time he filed an initial claim for compensation in 1975. Additionally, because of this delay in initial diagnosis of the Veteran's current hypertension, a VA examiner opined that it was less likely than not that the Veteran's hypertension was related to service. Taken together, this evidence suggests both that the Veteran's current hypertension has not been ongoing since service separation and did not manifest to a compensable degree within a year of service separation. Finally, the Board finds that the weight of the evidence demonstrates that hypertension is not caused by any in-service event, including defoliant exposure during service. As noted above, hypertension is, by regulation, not a disease for which service connection may be presumed as being the result of herbicide exposure. The scientific studies reviewed as part of that regulatory process associated with ischemic heart disease also established no correlation between herbicide exposure and hypertension that developed many years later such that hypertension was specifically excluded by regulation as a disease associated with herbicide exposure. The record does not show hypertension in service or continuous symptoms of hypertension since service. As such there is no factual basis for the Board to seek an additional nexus opinion, or upon which a medical professional could relate the Veteran's hypertension to service, as any purported direct nexus opinion would be based a factually inaccurate assumption of chronic or continuous symptoms or would be inconsistent with studies establishing the lack of such relationship. As such, service connection for hypertension may not be established on a presumptive basis, including as due to herbicide exposure. 38 C.F.R. §§ 3.307, 3.309. The Veteran himself contends that his hypertension may be related to his herbicide exposure in service. The Board recognizes that a layperson such as the Veteran is competent to testify regarding observable symptomatology. See Jandreau, 492 F.3d at 1372; see also Charles, 370 Vet. App. at 374. The Board does not find, however, the Veteran to be competent to render a medical opinion relating his hypertension to any incident of service, to include herbicide exposure. Opinions regarding the proper diagnosis and etiology of any vascular disorder require specialized skill, knowledge, and/or training, which the Veteran has not demonstrated. Vascular disorders such as hypertension are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent evidence. The Veteran has also not alleged that he has been informed by a competent expert of a nexus between his current hypertension and his herbicide exposure in service. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for hypertension, including as a presumptive disease or as due to herbicide exposure, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hypertension, to include as due to herbicide exposure, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs