Citation Nr: 1315194	
Decision Date: 05/08/13    Archive Date: 05/15/13

DOCKET NO.  10-03 924	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for hypertension. 


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1974 to June 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  The Veteran testified at a hearing in March 2011 before the undersigned Acting Veterans Law Judge.  A copy of the transcript of that hearing has been associated with the record on appeal.    

The issue of service connection for hepatitis C was originally associated with this appeal; however, the RO granted service connection for hepatitis C in an August 2012 rating decision.  The decision is considered a full grant of benefits.  Therefore, the issue is no longer before the Board.  The Veteran may separately appeal any effective date or disability rating issues if she so chooses within the applicable period of time.  

The case was remanded by the Board in December 2011 to afford the Veteran a VA examination and obtain a nexus opinion.  The Veteran was afforded a VA examination in January 2012.  The examiner provided a nexus opinion with a sufficient rationale for that opinion.  Therefore, a review of the record indicates that the Board's directives were substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1.  The Veteran testified as to in-service symptoms of light-headedness, dizziness, and occasional tingling in her arm after sleeping.

2.  The Veteran's hypertension did not manifest during service or within one year of separation from service.   

3.  The Veteran's current hypertension is not causally or etiologically related to service.  


CONCLUSION OF LAW

The criteria for service connection for hypertension have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 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

	Duties to Notify and Assist

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, and 3.326(a) (2010), 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).

The record shows that through a VCAA letter dated April 2009 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection.  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).

The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Further, the notice requirements apply to all five elements of a service connection claim: 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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).    

The VCAA letter to the Veteran was provided in April 2009 prior to the initial unfavorable decision in May 2009.  In this case, the Veteran was also advised of the criteria for rating a disability and those governing effective dates of awards in the April 2009 letter.

The Board also finds that there has been compliance with the VCAA assistance provisions.  The record in this case includes service treatment records, VA examination reports, VA treatment records, and lay evidence.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c).  No additional pertinent evidence has been identified by the Veteran.

The Court has held that at a hearing on appeal, a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  The transcript reflects that at the March 2011 hearing the undersigned set forth the issues to be discussed at the hearing and sought to identify any further development that was required to help substantiate the Veteran's claims. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) , nor have they identified any prejudice in the conduct of the hearing.

The Veteran was afforded a VA examination in January 2012.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board notes that the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination report sets forth detailed examination findings.  Therefore, the examination report is adequate to decide the claim of service connection.  Thus, further examination is not necessary regarding the issue on appeal.

Service Connection - Laws and Regulations

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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(b).

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.

However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.")  Pertinent to the case at hand, hypertension is among the list of chronic diseases listed within 38 C.F.R. § 3.309(a).  

In McClain v. Nicholson, 21 Vet. App. 319 (2007), the Court held that the requirement that a claimant have a current disability before being granted service connection is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability may have resolved by the time VA adjudicates the claim.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74   (1997); Layno v. Brown, 6 Vet. App. 465, 469   (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Service Connection - Analysis

The Veteran contends that she has hypertension that is causally related to service. The Veteran's service treatment records (STRs) reveal that on the April 1974 report of medical history, the Veteran noted no history of or current hypertension.  Moreover, on the corresponding report of medical examination, the Veteran's heart and vascular system were clinically normal and the Veteran's blood pressure was 112/60.  Additionally, at the April 1977 separation medical examination, the Veteran's heart and vascular system were clinically normal and the Veteran's blood pressure was 120/84.  On the Veteran's May 1977 separation report of medical history, the Veteran denied ever having high or low blood pressure.  The remaining STRs are silent regarding any complaint, treatment, or diagnosis of hypertension. 

Post-service, the Veteran testified that she was originally diagnosed with hypertension between 1986 and 1991.  She alleged that she was placed on medication but stopped it herself when it made her light-headed.  She also alleged that she was again diagnosed with hypertension in 2003 or 2004 and that since that time she has been on medication for her hypertension.  The Board notes that the January 2012 VA examination report reflects that the Veteran was diagnosed with hypertension in 2006.

VA treatment records show a current diagnosis of hypertension.  The salient question is whether the current hypertension is related to the Veteran's military service.

The Veteran was afforded a VA examination in January 2012.  The examiner confirmed the diagnosis of hypertension.  The examiner reviewed the claims file, interviewed the Veteran, and performed a physical examination.  He opined that the Veteran's hypertension was less likely than not incurred in or caused by the Veteran's service.  In his rationale, the examiner noted that there were no elevated blood pressures recorded during service, there was no diagnosis of hypertension in service, and the first diagnosis of hypertension was not until many years after separation from service.  He found no apparent relationship between the Veteran's military service and her current hypertension.  

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154(a) (West 2002).  The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to").

Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  See id. at 1316.  Instead, under 38 U.S.C.A. §§ 1154(a) 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, (e.g., a broken leg), (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, 492 F.3d at 1377 (footnote omitted).  For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer.  Id. at 1377 n.4.

The Board has considered the Veteran's lay statements and acknowledges that the Veteran claims to have had two months of medical training during service.  The Board also notes however that despite these two months of training, the Veteran states that she did not know what her symptoms may have meant during service.  In any event, although the Veteran is competent to assert that she experienced light-headedness, dizziness, and tingling of the arm during service, the Board finds that the etiology of the Veteran's hypertension is too complex an issue, one typically determined by persons with significant medical training, to lend itself to lay opinion evidence.  

No medical evidence of record finds a relation between active duty service and the Veteran's hypertension.  The only medical opinion in the file was provided by the VA examiner in January 2012.  The examiner opined that it is not at least as likely as not that the Veteran's hypertension is related to her military service.  There is no contrary medical opinion of record.  The January 2012 examiner was fully informed of the pertinent factual premises of the case and he provided a fully articulated opinion that included a reasoned analysis.  Therefore, the Board finds that the examiner's opinion is of significantly more probative value than the Veteran's lay assertions.

In sum, the evidence does not show that the Veteran's hypertension is related to service or manifested within a year of discharge from service.  The evidence does not show that the Veteran experienced chronic symptoms of hypertension during active service or continuous symptoms of hypertension after separation from service.  Additionally, no competent evidence of record indicates that the Veteran's hypertension manifested to a compensable degree within one year of separation from service.  Accordingly, the preponderance of the evidence is against the claim, and service connection for hypertension is denied. 

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to service connection for hypertension is denied.  


____________________________________________
M. N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs