Citation Nr: 1313598	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  10-18 261A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for hypertension.  


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

S. Dale, Counsel


INTRODUCTION

The Veteran served on active duty from November 1986 to November 1989. 
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

In October 2012, the Board remanded the Veteran's claim to obtain an adequate nexus opinion.  As the Board is granting the Veteran's claim in full, a complete discussion of whether the Board's October 2012 remand directives were substantially completed is not necessary.  The Veteran's claim has been returned to the Board.  


FINDING OF FACT

The evidence of record reflects a current diagnosis of hypertension as well as frequent and persistent elevated blood pressure readings dating back to the Veteran's active duty.  


CONCLUSION OF LAW

The criteria for service connection for hypertension are met.  38 U.S.C.A. §§ 101(21), (24), 106, 1101, 1110, 1112, 1113, 1116, 1154(a) 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.306, 3.307, 3.309, 4.104, Diagnostic Code 7101 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for hypertension, which constitutes a complete grant of the Veteran's claim.  Therefore, no discussion of VA's duty to notify or assist is necessary.

There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  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.  38 C.F.R. § 3.159(a)(2).

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a).  The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Hypertension is listed among diseases recognized by VA as chronic in 38 C.F.R. § 3.309(a).  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 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, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

A 10 percent evaluation for hypertension requires diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more; or if a claimant has a history of diastolic pressure of predominantly 100 or more and requires continuous medication for control.  38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (2012).  Under Note (1) of 38 C.F.R. § 4.104, Diagnostic Code 7101, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  Note (1) defines "hypertension", for VA purposes, as diastolic blood pressure that is predominantly 90 millimeters or greater.  "Isolated systolic hypertension" is defined, for VA purposes, as systolic blood pressure that is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters.  In a blood pressure reading, "systolic blood pressure" is represented as the top value, whereas "diastolic blood pressure" is expressed as the bottom value (for example, in a blood pressure reading of 120/80, the value of 120 represents the systolic blood pressure, while the value of 80 reflects the diastolic blood pressure).

Analysis

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").  

The Veteran claims that his current hypertension is related to his active duty.  Specifically, although hypertension was diagnosed many years after his separation from service, the Veteran contends that elevated blood pressure readings during his active duty and shortly after separation were early indications of his currently diagnosed hypertension.  

The Veteran's service treatment records reflect no fewer than 20 blood pressure readings, to include results of 160/100, 156/88, and 154/88 at his November 1986 entrance examination.  In total, five of the 20 in-service blood pressure readings meet VA's criteria's for hypertension as defined by Note (1) of Diagnostic Code 7101; however, as only one-quarter of the Veteran's in-service blood pressure readings meet this criteria, it cannot be said that the Veteran's systolic of diastolic readings were predominately above the threshold for diagnosed hypertension during the Veteran's service.  Nonetheless, it is noted that the Veteran demonstrated elevated blood pressure readings during active duty.  

The Veteran's post-service treatment records reflect blood pressure readings of 132/84 and 141/80 in March 1990, shortly after separation.  As stated by the VA examiner in January 2012 and October 2012, there is no evidence of systolic or diastolic readings which meet the criteria for a 10 percent evaluation under Diagnostic Code 7101 during the initial post-service year.  

Subsequent VA treatment records reflect that the Veteran began demonstrating elevated blood pressure readings in October 1999, and he was later diagnosed with hypertension prescribed medication for management of his blood pressure in November 2004.  Although the prescription medication was initially effective, the Veteran's hypertension worsened, as evidence by additional elevated readings, and thus, his prescription medication was increased in April 2006.  

In the January 2012 VA examination report, the examiner noted the Veteran's extensive history of elevated blood pressure readings during his service as well as after separation, but ultimately opined that hypertension was not the result of his service.  However, in providing this opinion, the examiner stated that the Veteran's in-service blood pressure readings "could be considered early warning signs for the later development of hypertension."  

In the October 2012 remand, the Board, noting that service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service under 38 C.F.R. § 3.303(d), directed that the examiner should provide more definite opinion concerning whether the Veteran's current, medically diagnosed hypertension was related to his extensive history of elevated blood pressure readings, to include those during his service.  

In the October 2012 addendum, the examiner again stated that the Veteran's hypertension was less likely as not the result of his service.  In providing this opinion, the examiner observed that the Veteran's Body Mass Index (BMI) and cigarette smoking habit remained constant between his entrance and separation from active duty, and further noted that being overweight and smoking were the top two risk factors for hypertension.  

The Board concludes that the October 2012 VA addendum opinion is inadequate for the purpose of adjudicating the Veteran's claim.  Specifically, although the examiner noted the Veteran's in-service elevated blood pressure readings for a second time, a definitive statement was not offered concerning whether such were related to his current hypertension.  

While the Board observes that the nexus evidence of record is inadequate, in light of the evidence recounted above, the Board concludes that a remand to schedule another VA examination or obtain another VA opinion would constitute unreasonable delay and expenditure of scarce VA resources.  38 C.F.R. § 3.303; Counts v. Brown, 6 Vet. App. 473, 478 - 9 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's statutory duty to assist is not a license for a "fishing expedition").  Similarly, the Court has cautioned against seeking an additional medical opinion where favorable evidence in of record.  The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an Veteran's claim.  Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  

In sum, the medical evidence of record reflects elevated blood pressure readings during the Veteran's active duty and on a frequent and consistent basis after his separation.  Thereafter, hypertension was formally diagnosed and medication for blood pressure management was prescribed in November 2004.  As noted above, the VA examiner acknowledges a possible relationship between the Veteran's previously-recorded elevated blood pressure readings and his currently diagnosed hypertension; however, a more definitive statement was not provided upon remand.  Although hypertension was not manifested to a compensable degree within a year of service and thus cannot be presumed to be service-connected, there is competent and credible evidence of high blood pressure in service and consistently since service, therefore, service connection is warranted based on continuity of symptomatology.  38 C.F.R. §§ 3.303(b), 3.309; Walker v Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Therefore, conferring the benefit of the doubt in favor of the Veteran, the Board finds that there is adequate evidence of record that the Veteran's frequent and persistent blood pressure readings during and since his active duty are related to his currently diagnosed hypertension.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).  
Accordingly, the Board finds that service connection for hypertension must be granted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).


ORDER

Entitlement to service connection for hypertension is granted.  



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs