Citation Nr: 1313849 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 07-28 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from May 1968 to May 1970 and from May 1973 to May 1976. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a March 2011 decision the Board found that the Veteran had presented new and material evidence with which to reopen his claim for service connection for hypertension and remanded the reopened claim for VA treatment records from the Atlanta VAMC, dated from November 2006 to the present, and to schedule the Veteran for a VA examination and medical opinion. This case was most previously before the Board in April 2012 and was remanded primarily for the purpose of obtaining the Veteran's records from the Social Security Administration (SSA). While VA medical records have been added to the Veteran's virtual VA file subsequent to the last VA adjudication in December 2012, such records simply list the Veteran's various medications and note that hypertension is one of the Veteran's active medical problems. As the matter of a current hypertension disability is not in dispute in this case, the Board finds that the aforementioned VA records are not pertinent to the matter on appeal so as to warrant a remand to the AOJ for the issuance of a supplemental statement of the case. Disabled American Veterans (DAV) v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.37(b), 20.1304(a) (2012). FINDING OF FACT Hypertension was not present in service or within one year of service discharge, and there has been no demonstration by competent clinical, or credible lay, evidence of record that hypertension is etiologically related to or chronically aggravated by either period of the Veteran's active service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, nor may hypertension be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies in this case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence, including that dated in March 2006, March 2011, and April 2012 the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of the appellant to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the March 2006 letter the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA records and records from the Social Security Administration (SSA). The Veteran has undergone a VA examination that has addressed the medical matters presented by the appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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 VA examiner performed a contemporaneous physical examination of the Veteran and elicited information concerning the Veteran's military service. The opinion considered the pertinent evidence of record and contained supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that there has been substantial compliance with its April 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Applicable Laws-Service connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show 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." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain specified chronic diseases, such as hypertension, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board observes that a Veteran's "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456 (1992). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran essentially contends that he developed high blood pressure readings during his second period of active service that are indicative of hypertension. Service treatment records from the Veteran's first period of service from May 1968 to May 1970 reveal that hypertension was not noted in service, and the Veteran has not asserted to the contrary. A June 1970 VA treatment record noted that the Veteran's blood pressure was 140/102. Private medical records dated in July 1970, October 1970, and November 1970 reflecting primarily treatment for asthma revealed blood pressure readings of 122/90, 130/85, and 110/84, respectively. At a February 1972 VA examination the Veteran made no complaints related to hypertension or a cardiovascular disorder, and physical examination revealed no such disorder. The Veteran's blood pressure was 116/78. As for the Veteran's second period of service, the Veteran's April 1973 service entrance examination report indicated that the Veteran's heart was clinically evaluated as normal, and his blood pressure was 124/80. Blood pressure readings from December 20, 1974 through December 30, 1974 were 132/88, 124/86, 138/90, 138/96 and 138/98. In December 1974 a medical clinic consult was initiated to evaluate mild diastolic hypertension, and the Veteran was seen on January 7, 1975 for consultation; his blood pressure was 134/80, and the assessment was labile blood pressure without evidence of sustained elevation. The Veteran was seen in April 1975 with blood pressure of 130/100; the assessment was bronchial asthma and "?" hypertension. There were 5 days blood pressure measurements in the mornings and evenings to include measurements in the sitting and reclining positions from April 21, 1975 through April 25, 1975. During these periods, the Veteran's lowest blood pressure was 100/60 and the highest reading was 140/90. In October 1975 the Veteran complained of high blood pressure and pain over his heart area. Physical examination revealed bilateral wheezing, with systolic blood pressure of 120-122 and diastolic blood pressure of 78-82. The Veteran's March 1976 service separation examination noted that the Veteran's heart was clinically evaluated as normal, and his blood pressure was 118/62;the Veteran noted a history of one episode of hypertension on the corresponding report of medical history. A May 1990 VA discharge summary for substance abuse treatment noted that the Veteran's blood pressure was 118/86. An October 1990 VA record noted a blood pressure reading of 150/90. A September 1992 VA record indicated that the Veteran's blood pressure was 118/76. A July 1993 VA record noted that the Veteran had complained of hypertension since March 1993. The impression was rule out hypertension. A VA record dated in July 28, 1993, revealed a diagnosis of hypertension. A March 2011 VA examiner (as contained in an August 2011 addendum), following a review of the Veteran's medical history and a contemporaneous examination, stated that the Veteran's hypertension was less likely than not incurred in or caused by the Veteran's military service. The examiner noted that the Veteran was not diagnosed with hypertension while in service and further noted that he had been specifically evaluated for hypertension and it had been ruled out. The examiner stated that the Veteran's sporadic elevation in blood pressure in service could be explained by substance abuse during service, especially cocaine. The earliest medical evidence of record noting a diagnosis of hypertension is March 1993. As such, hypertension was not demonstrated during the Veteran's periods of active service, and hypertension was not demonstrated to a compensable degree within a year of discharge from either of the Veteran's periods of active service. Finally, no competent medical evidence provides a nexus or link between hypertension and the Veteran's periods of active service. In fact, a VA examiner has specifically opined that no such relationship exits. The Veteran is competent to provide statements concerning factual matters of which he has first hand knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran lacks the medical training and expertise to opine that any hypertension that he has is etiologically related to his military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see generally King v. Shinseki, 700 F. 3d 1339 (Fed. Cir 2012). As for the Veteran's assertions of continuity of hypertension since service, the Board notes that hypertension was not noted on the Veteran's March 1976 service separation examination, and hypertension was not noted on the Veteran's May 1990 VA discharge summary. However, the Board does not find that the Veteran's lay statements are sufficient to establish continuity of hypertension in this case, particularly in light of the medical evidence to the contrary. As was explained earlier, the March 2011 VA examination and August 2011 addendum, the isolated incidents of elevated blood pressure readings in service were not indicative of hypertensive disease. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs