Citation Nr: 1314505 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 08-12 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from August 1972 to March 1993. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Seattle, Washington, Regional Office which denied service connection for hypertension. In August 2011, the Board remanded the appellant's appeal to the Oakland, California, Regional Office (RO) to obtain additional treatment records. That action requested by the August 2011 Board remand was accomplished, and the case was returned to the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). In January 2013, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in internal medicine. In January 2013, the requested VHA opinion was incorporated into the record. In February 2013, the appellant and representative were provided with a copy of the VHA opinion. In April 2013, the representative submitted additional argument. The Board has reviewed both the appellant's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. In its August 2011 Remand, the Board referred the appellant's claim of entitlement to service connection for an enlarged heart to the RO for adjudication. The record does not reflect that the issue has been adjudicated. Therefore, it is again referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran did not sustain vascular injury or disease or chronic symptoms of hypertension during active service. 2. Symptoms of hypertension were not continuous since service separation, did not manifest to a compensable degree within one year of service separation, and were first objectively manifested 13 years after service in October 2006. 3. The Veteran has a current disability of hypertension. 4. Hypertension did not begin during service and is not related to active service. CONCLUSION OF LAW Hypertension was not incurred in active service and may not be presumed to have originated during such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473(2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. VA has issued several VCAA notices to the appellant including a February 2007 notice which informed him of the evidence generally needed to support a claim of service connection and the assignment of an evaluation and effective date for an initial award of service connection; what actions he needed to undertake; and how VA would assist him in developing his claim. The February 2007 VCAA notice was issued to the appellant prior to the April 2007 rating decision from which the instant appeal arises. The appellant's claim was readjudicated in the April 2008 statement of the case and the June 2012 supplemental statement of the case issued to the appellant. Therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA. The Board requested a VHA internal medicine opinion. The opinion was incorporated into the record and provided to the appellant. The appellant submitted additional argument after receiving the VHA opinion. To that end, when VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The January 2013 VHA opinion reflects that all relevant records were reviewed and the questions posed were answered. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no issue as to the substantial completeness of the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Service Connection for Hypertension The appellant asserts that service connection for hypertension is warranted as the claimed disorder was manifested due to various in-service events or exposures. He contends that he was exposed during active service to: extremely low and high atmospheric pressures while performing his military duties for over 20 years; the chemical toluene-2,4-diaminewhile repairing military pressure suits; nuclear radiation while assisting U-2 aircraft crews; and/or inappropriate food provided to him by the Air Force. Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. The claimed disorder, hypertension, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. 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). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of ten percent within one year of termination of 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, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). After a review of all the evidence, the Board first finds that the weight of the evidence demonstrates that the Veteran did not sustain vascular injury or disease or chronic symptoms of hypertension during active service. The service treatment records make no reference to either hypertension or elevated blood pressure readings. The service documentation does reflect that the appellant was treated for decompression sickness in October 1979, but do not show chronic symptoms or chronic residuals from this incident. His service personnel records state that he served in the Air Force as an aerospace physiology technician. His military duties involved diving chamber and altitude chamber physiological training and support. In a March 2007 written statement, the appellant acknowledged that he was "never diagnosed as having hypertension or even treated for it" during active service. In his June 2007 notice of disagreement, the appellant asserted that he exhibited elevated blood pressure readings which were not recorded by treating military medical personnel so that he could remain on active duty. Such statement is inconsistent with, and outweighed by, the Veteran's March 2007 statement that he was not diagnosed or treated for hypertension during service, and the otherwise complete service treatment record evidence, which shows notation and treatment for decompression sickness but does not show that the Veteran sought treatment for symptoms of hypertension or that chronic elevated blood pressure readings were recorded during service. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803 (7))). The Board next finds that symptoms of hypertension were not continuous since service separation, did not manifest to a compensable degree within one year of service separation, and were first objectively manifested 13 years after service in October 2006. A post-service June 1996 hospital discharge summary from Sun Ridge Hospital and Counseling Center reflects that the appellant was admitted for treatment of alcoholism. He denied having "any other past medical problems." On physical evaluation, the appellant exhibited a blood pressure reading of 159/106. An impression of alcohol dependence was advanced. An October 2006 VA treatment record reflects that, just one month prior to filing a VA compensation claim for hypertension, the Veteran stated he "has known of high blood for 20 yrs" and "hasn't been on med for 10 yr." Such history given by the Veteran just prior to filing his compensation claim is inconsistent with the lay and medical evidence, and Board findings, of no in-service injury or disease or chronic symptoms of hypertension. It is also inconsistent with the Veteran's own actions after service of filing claims for service connection for other disabilities but not mentioning or claiming service connection for hypertension. In June 1997, the Veteran claimed service connection based on asbestos exposure and radiation exposure, including for shortness of breath and depression. In July 2002, he claimed service connection for bilateral hearing loss, without claiming or mentioning hypertension. He did not claim service connection for hypertension until November 2006. Where Veteran filed a claim for service connection, but did not mention hypertension or symptoms at that time, this suggests that there was no pertinent symptomatology at that time, or history of hypertension in service or after service. 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. 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 other claims for compensation, is indicative of the Veteran's belief that he did not sustain hypertension in service and the lack of hypertension symptomatology at the time he filed the claims. In a March 2007 written statement, the appellant asserted that he "may have been misdiagnosed" by military medical personnel during service; was never provided "a 24 hour ambulatory blood pressure monitoring to find out for sure" whether he had hypertension; and "should have been diagnosed with hypertension or pre-hypertension and treated while I was on active duty." While this statement constitutes a contention, it is of no probative value in demonstrating hypertension during service; instead, it weighs against a finding of hypertension during service, as it constitutes a history of no diagnosis of hypertension during service, a fact of which the Veteran is competent to report. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis). The Veteran has a currently diagnosed disability of hypertension. VA clinical documentation dated in November 2006 states that the appellant was diagnosed with hypertension. On the question of whether the currently diagnosed hypertension is related to service, the Veteran has asserted several theories as to how his current hypertension may be related to service. In his June 2007 notice of disagreement, the appellant asserted that he believed that his hypertension was caused by his "varied exposures to extreme variances in barometric pressures (as little as 2.5 PSI and as much as 73.5 PSI)." In a July 2007 written statement, the appellant advanced that his Internet research revealed information that his in-service noise exposure could have caused his hypertension. In his April 2008 Appeal to the Board (VA Form 9), the appellant reiterated his belief that his hypertension was related to his inservice exposure to the extreme barometric pressures. In a September 2011 written statement, the appellant conveyed that his hypertension was caused by either "being exposed to atmospheric pressures as low as 2.5 PSI (pounds per square inch) and as high as 48 PSI, (with sea level normal being 14.7 PSI) multiple times over a 20 year span;" "varied noise exposures;" and/or "varied chemical exposures [and] military food." The appellant clarified that: he had been exposed to toluene-2,4-diamine while making pressure suit repairs during active service; the chemical has been shown to cause a "rise in blood pressure;" and he had been provided "countless meals" by the Air Force "which may have contributed to me developing high blood pressure." He stated further that he "was even exposed to nuclear radiation contracted by the U-2 aircraft on more than one occasion." On the question of nexus of hypertension to service, the Board finds that the weight of the competent evidence demonstrates that the hypertension was not incurred in service and is not related to service. No competent medical professional has attributed the onset of the appellant's hypertension to either active service or his military duties. The January 2013 VHA opinion weighs against a finding of relationship of current hypertension to service. The January 2013 VHA opinion concludes that "there is no medical literature to support" identified risks factors of either "prolonged exposure to high and low atmospheric pressures inside a pressure chamber," "prolonged exposure to toluene-2, 4-diamine," or the appellant's "in-service decompression illness including duties as an inside instructor/observer on high/low pressure chamber flights" "for the development of chronic hypertension." The VHA examiner concluded that "it is my opinion that it is very unlikely (less than 50%) that the patient's chronic hypertension is secondary to his exposure to high and low atmospheric pressure flights." The reviewing VHA physician in January 2013 reasoned that there was very little medical literature that has evaluated the effect of atmospheric pressure and its effect on blood pressure, and in one study performed in 1996 that evaluated the effects of atmospheric pressure on blood pressure the researchers found no statistically significant correlation between atmospheric pressure and blood pressure readings. The VHA examiner also indicated that there was no scientific evidence that toluene exposure lead to chronic hypertension, so concluded it was quite unlikely (less than 50%) that toluene exposure had any contribution to the patient's chronic hypertension. The VHA examiner further indicated that, unless the Veteran was exposed to high levels of radiation before he was 16 years old and was a lifelong non-smoker, it is exceedingly unlikely (much less than 50%) that his chronic hypertension is related to his in-service radiation exposure. In his April 2013 Appellant's Brief in Response to Medical Expert Opinion, the appellant's representative asserts that service connection for hypertension was warranted as the appellant had "pre-hypertension" manifested by blood pressure readings ranging from 110/70 to 130/80 during active service. The appellant asserts that he exhibited hypertension or "pre-hypertension" during active service secondary to his in-service exposure to low and high barometric pressures inside diving and flight chambers, altitude sickness, noise, toluene-2, 4-diamine, radiation, and/or Air Force-provided food. He believes that he must have been either misdiagnosed or otherwise improperly treated by military medical personnel given the absence of a diagnosis of hypertension. The January 2013 VHA opinion clarifies that the review of the relevant medical literature does not support the finding of "prolonged exposure to high and low atmospheric pressures inside a pressure chamber," "prolonged exposure to toluene-2, 4-diamine," decompression illness, and/or radiation exposure after the age of 16 to be risk factors for the development of hypertension. The appellant has acknowledged that he was not diagnosed with or treated for hypertension during active service. To the extent that the appellant asserts that his hypertension is related to active service and/or his military duties, in this case in the context of no hypertension shown in service, no chronic symptoms of hypertension in service, and no continuous symptoms of hypertension for years after service, with hypertension first diagnosed years after service, the Board finds that the appellant's lay statements do not constitute competent evidence. He has not offered any medical qualifications. The appellant is not competent to offer an opinion regarding the etiology of his hypertension under the facts in this case. The onset of hypertension, in the context of no chronic in-service symptoms or continuous post-service symptoms, is not amenable to observation by a lay person. The question of the etiology of such a disability involves the ruling in or out of multiple potential etiologies, so is too complex to be addressed by a layperson. The relationship between hypertension and its causes is the subject of extensive research by medical professionals, as it would require specific clinical testing and correlation. See Jandreau, 492 F.3d at 1377. In this case, hypertension was not shown during active service or for many years thereafter, including no chronic symptoms during service, no manifestation to a compensable degree within one year of service separation, and no continuous post-service symptoms of hypertension. The weight of the competent evidence demonstrates that the currently diagnosed hypertension was not incurred in or related to active service. For these reasons, the Board finds that service connection for hypertension, including as a presumptive disease, is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hypertension is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs