Citation Nr: 1314767 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-32 285A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicides. 2. Entitlement to service connection for a bilateral leg disability, to include varicosities of the legs. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2007 and November 2008 ratings decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Board hearing at the RO in December 2011 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The case was previously remanded for further development by the Board in February 2012 to obtain the Veteran's VA treatment records from 1971 to 1972. After making reasonable efforts to obtain these records, the AMC determined in February 2013 that they were not available. The AMC also requested any outstanding service treatment records from the appropriate government facility but received a negative response. Under these circumstances, the Board finds that its directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to service connection for a bilateral leg disability, to include varicosities of the legs, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has a current diagnosis of hypertension. 2. The evidence of record does not establish that the Veteran experienced symptoms of chronic hypertension during service or continuous symptoms of hypertension since separation from service. 3. The Veteran's hypertension did not manifest within one year of separation from service. 4. The Veteran's hypertension is not causally or etiologically related to service, to include as due to herbicide exposure. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The record shows that prior to the initial unfavorable decision in November 2008, through a VCAA letter dated July 2008 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection for hypertension, as well as the criteria for rating a disability and those governing effective dates of awards. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). In addition, the duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his identified and available VA medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Board's December 2011 remand, in February 2012, the AMC requested the Veteran's service treatment records from the National Personnel Records Center (NPRC). The NPRC responded in the same month, that there were no outstanding service treatment records for the Veteran and all available service treatment records were previously sent to the RO. The AMC also made multiple requests in February, June, August, September and December 2012, to obtain from the VA Medical Center (VAMC) in Miami, Florida, any outpatient treatment records pertaining to the Veteran dated 1971 and 1972. However, in February 2013, the Miami VAMC replied that no records were available. Accordingly, the AMC made a formal finding to the effect that these records were not available. In a February 2013 supplemental statement of the case, the Veteran was provided a written notice of the unavailability of his Miami, Florida VAMC records dated 1971 and 1972. See 38 C.F.R. § 3.159(e). Subsequently, the Miami VAMC sent the Veteran's outpatient treatment records dated July 1980 and these records have been associated with the claims file. The Veteran sent a waiver of RO consideration of any new evidence after the date of the supplemental statement of the case. See 38 C.F.R. §§ 19.31, 20.1304 (2012). Based on the foregoing, the Board finds that there has been substantial compliance with its December 2011 remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Additionally, the Board finds that a VA examination is not required in this matter. Most importantly, the probative evidence of record does establish that an event, injury or disease occurred in service, relative to hypertension. Given that several studies commissioned by VA have not found any statistical correlation between hypertension and exposure to herbicides, any herbicide exposure in service is not a relevant event or injury for the purpose of rendering a VA examination or opinion necessary. Moreover, continuity of symptomatology is not shown, and there is no medical evidence of record suggesting that the Veteran's current hypertension is related to his military service. Thus, a VA medical examination addressing the etiology of this condition is not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, although the Veterans Law Judge (VLJ) did not specifically explain the elements of the claim that were lacking to substantiate the claim for service connection for hypertension, the hearing focused on the elements necessary to substantiate the claim. The Veteran was assisted at the hearing by an accredited representative from the Florida Department of Veterans Affairs, and he was asked questions to ascertain the onset of symptoms, duration of symptoms, and any nexus between service and a current disability. Additional records were identified by this questioning and the AMC attempted to obtain such records pursuant to the Board's December 2011 remand. Thus, to the extent it was possible, the submission of overlooked evidence was suggested by the Board. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, such as cardiovascular-renal disease, including hypertension, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In addition, 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Additionally, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a); 38 C.F.R. § 3.309(e). In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The most recent issuance added hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of presumptive disabilities in the regulation. See 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). A presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which VA has not specifically determined a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (2007). In this case, the Veteran claims that he has hypertension, to include due to exposure to Agent Orange during his military service. The record reflects that the Veteran served a tour of duty in Vietnam during active duty service from June 1969 to June 1970. The Veteran is therefore presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C.A. § 1116(f). Here, the issue presented is whether the Veteran's current hypertension is related to his military service on a direct or presumptive basis. The Veteran has a current diagnosis of hypertension as documented by the Veteran's VA treatment records. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, as hypertension is not among those diseases presumptively linked to herbicide exposure, the Veteran's current hypertension would not warrant service connection on a presumptive basis based on Agent Orange exposure, and in fact, hypertension is specifically excluded from the list of presumptive Agent Orange diseases. See 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). Notwithstanding the foregoing, the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). However, service connection is also not warranted on a direct basis. The Veteran's available service treatment records are completely negative for any diagnosis of hypertension or elevated blood pressure readings. His certificate of physical and mental status on release from active service dated June 1970 indicated that the Veteran's physical condition was such that he was considered physically qualified for separation or re-enlistment without re-examination. No blood pressure readings were noted. Therefore, the evidence does not establish that the Veteran experienced chronic symptoms of hypertension during service. Nor does the Veteran contend that he was treated for or diagnosed with hypertension in service. The Veteran testified at his December 2011 Board hearing that he believed that he has had hypertension since service as he experienced dizziness from running and shortness of breath while in service. He also indicated that he was treated at the VA Medical Center in Miami, Florida around 1971 or 1972, at which time he was told to have high blood pressure and given pills for treatment. The Veteran is certainly competent to testify as to symptoms that are non-medical in nature, such as dizziness or shortness of breath; however he is not competent to render a medical opinion whether such symptoms represented onset of his current hypertension. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). Concerning this, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a diagnosis or nexus opinion relating his current hypertension to his symptoms in service, the Board finds that the etiology of the Veteran's hypertension is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. Additionally, the Board acknowledges the Veteran's statements that he was treated for high blood pressure at VA around 1971 or 1972. These statements are competent evidence concerning factual matters within his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). However, the Board finds them not credible. The earliest postservice evidence of hypertension is a March 2001 VA treatment report reflecting an assessment of hypertension and a blood pressure reading of 148/95 mmHg, which is over 30 years after service separation. The Board notes that the report included the Veteran's prior medical history, which listed "ELEV BL PRESS W/O HYPERTN 06/15/99 [(elevated blood pressure without hypertension)]," which indicates that although the Veteran had elevated blood pressure he did not yet have a diagnosis of hypertension in June 1999. Furthermore, a July 1980 VA treatment report shows a normal blood pressure reading of 130/70 mmHg. To that effect, under the pertinent regulations, hypertension means that the diastolic blood pressure is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension means that the systolic blood is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Here, the objective evidence of record does not corroborate the Veteran's assertion. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by the appellant). Not only is the normal blood pressure reading 10 years post service of more probative value than the Veteran's lay assertions that he was found to have high blood pressure in the early 1970s, but it tends to contradict his statements made many years after service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection). Based on the foregoing, the Board finds that the Veteran's lay statements regarding continuity of symptomatology for hypertension since service discharge are not credible and probative evidence of chronic hypertension since service. Additionally, there is no competent opinion of record as to whether the Veteran's current hypertension is related to his active service, to include his inservice exposure to Agent Orange. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the cause of hypertension, to include in relation to Agent Orange exposure, is not a simple question that can be determined based on mere personal observation by a lay person. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. The Board therefore finds that the question of whether the Veteran's current hypertension was caused by military service, to include exposure to Agent Orange, is well beyond the range of common experience or common knowledge, but requires special experience or special knowledge. The evidence of record does not show that the Veteran's hypertension was manifested to a compensable degree within the year after active service, and therefore, service connection for hypertension is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Because hypertension is not among those diseases presumptively linked to herbicide exposure, and the evidence of record does not relate the Veteran's current hypertension to his military service, the preponderance of the evidence is against his claim for service connection. As such, the benefit of the doubt doctrine is not applicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. REMAND The Veteran is seeking service connection for a bilateral leg disability, to include varicosities of the legs. Based upon its review of the Veteran's claims file, the Board finds there is a further duty to assist the Veteran with this claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran was provided a VA examination in March 2012 in conjunction with this claim. The March 2012 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In support of this opinion, the examiner noted that there was no documentation in the claims file that the Veteran was seen officially by the military physicians either in a clinic or hospital for falling in a fox hole and having pain and swelling. Based on that, the examiner stated that there was no objective evidence of varicose vein or leg condition in service. However, the Board finds this opinion is inadequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate); see also Stegall v. West, 11 Vet. App. 268 (1998). The VA examiner neglected to consider the Veteran's statements concerning symptoms experienced in service and continued after service. In this regard, the Veteran contends that he fell in a fox hole and experienced swelling of his legs and veins during service. He further contends that the symptoms continued after separation from service. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, the VA examiner could have addressed whether the Veteran's claimed symptoms were consistent with his complaints through the years, or whether the complaints are consistent with the current disorder. Instead, the examiner determined, incorrectly, that lack of treatment records are the only evidence which can provide the basis for an opinion concerning etiology. Given the deficiencies in the March 2012 VA examination report the Board must remand this case for another medical opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated treatment records for the Veteran from the Miami, Florida VA Medical Center, and all associated outpatient clinics, dated from February 2011 to the present. All attempts to obtain those records should be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral leg disability, including varicosities of the legs. A copy of this Remand and the entire claims file must be made available to and reviewed by the VA examiner. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements, to include his testimony at his December 2011 Board hearing. The examiner should then offer an opinion as to whether the Veteran's bilateral leg disability, specifically including varicosities of the legs, is at least as likely as not (i.e. 50 percent probability or more) etiologically related to his period of active military service, including the claimed symptoms of pain and swelling of the legs and veins ever since falling into fox holes in service. All necessary diagnostic testing should be conducted and commented upon by the examiner. All opinions should be supported by a clear rationale. 3. Notify the Veteran that he must report for the scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs