Citation Nr: 1315382 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 07-31 826 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran had active service from July 1971 to May 1974 and from January 2003 to January 2004, with service in the Army National Guard from June 1988 to September 2004. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 2004 rating decision, by the Decatur, Georgia, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for hypertension. This appeal has since been transferred to the Atlanta, Georgia, RO. In December 2009, the Board remanded the case for additional evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in April 2011. In June 2011, the Board again remanded the case for further evidentiary development. Following the requested development, an SSOC was issued in August 2012. In November 2012, the Board once again remanded the case for still further evidentiary development. Following the requested development, an SSOC was issued in February 2013. Given the actions taken, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The Veteran's hypertension had its onset well after his separation from his first period of service; and the preponderance of the evidence on file is against a finding that the Veteran's hypertension is related to his first period of service. 2. The evidence clearly shows that the Veteran's hypertension existed prior to his entrance into his second period of service. 3. The competent evidence of record clearly shows that Veteran's hypertension did not increase in severity beyond the natural progress of the disease during his second period of active military service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103A, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in February 2004 and July 2004 from the RO to the Veteran, which were issued prior to the RO decision in October 2004. Additional letters were issued in March 2010, June 2011, August 2011, and November 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Veteran was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the appeal. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The Veteran served on active duty from July 1971 to May 1974. The STRs from the Veteran's first period of active duty were entirely negative for any complaints, findings or diagnosis relating to hypertension. On the occasion of the separation examination in March 1974, the Veteran reported in his report of medical history that he was in good health. Clinical evaluation of the heart was normal; blood pressure reading was 128/88. Medical evidence of record, dated from January 1988 through March 2004, during the years between the Veteran's two periods of active duty, which include reserve records, indicate that he was diagnosed and treated for high blood pressure. During a clinical visit in August 1998, the Veteran's blood pressure reading was reported as 140/98. A National Guard examination, conducted in November 2002 reflects a blood pressure reading of 144/90, diagnosed as mildly increased high blood pressure; at that time, the examiner noted that the Veteran was taking Accupril for hypertension. A June 2003 treatment note indicated that the Veteran returned to the clinic for medication refill; the report reflects a diagnosis of hypertension-controlled. A redeployment examination, dated in December 2003, noted that the Veteran was diagnosed with hypertension prior to deployment with medication. The Veteran's application for service connection for hypertension (VA Form 21-526) was received in January 2004. The Veteran was afforded a VA examination in March 2004. At that time, it was noted that, during National Guard service in 2001, the Veteran was found to have elevated blood pressure; he was placed on Accupril. The examiner reported blood pressure readings of 128/88 sitting, 125/85 standing, and 130/88 recumbent. It was noted that PMI was not displaced without any sign of shifting. There were no systolic retractions or diastolic heartbeat. There was a normal rate and a normal regular rhythm. There was no pericardial friction, rub or thrill. There was a normal cardiac outline during percussion. There was a normal equal bilateral peripheral pulse without deficits. There was a normal S1 and S2 sound without S3 or S4 gallop. There was no murmur. There was no significant open snap or ejection clicks. There was a good upstroke without carotid bruits. The pertinent diagnosis was mild diastolic hypertension during the examination, most likely essential under fair control and currently without any significant complications. Received in August 2011 were treatment records from Dr. Michael Gee, dated from July 2004 to March 2011 which show that the Veteran received follow up evaluation for hypertension. The Veteran was afforded another VA examination in December 2012. At that time, the Veteran reported that he was diagnosed with hypertension sometime between 1999 to 2001. He stated that he has been placed on Quinapril 20 mg, which has controlled his blood pressure. He denied any dizziness, orthopnea, or heart condition. The Veteran indicated that he was a runner until 18 months ago when he stopped because of back pain. He stated that he has been followed by a private medical doctor in his town. The examiner noted that review of the claims folder reflect that a November 2002 National Guard examination revealed increased blood pressure and is no medication, Accupril 20 mg. In February 2003, an examiner wrote "patient diagnosed hypertension, Zistrel prior to deployment with RX 20mg." On examination, the examiner noted that current blood pressure readings were 145/85, 145/85, and 145/85. The diagnosis was hypertension. The examiner stated that the Veteran's currently well controlled hypertension is less likely as not caused by or aggravated by any diagnosed condition during his active duty. The examiner explained that the documentation showed that the Veteran was already on antihypertensive medication prior to the National Guard examination on November 7, 2002, and on February 10, 2003 the medical examiner wrote that the Veteran was diagnosed with hypertension and on medication prior to his deployment. The examiner noted that, even though there is no documentation as to when the Veteran was placed on medication, according to the Veteran, he was placed on medication by his private physician outside the military compound. The examiner stated that, with all the available records and the Veteran's history, it is more likely he was diagnosed as having hypertension prior to deployment by his private physician. III. Legal Analysis. Veterans are entitled to an award of service connection for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection for a chronic disease such as arteriosclerosis and cardiovascular-renal disease, including hypertension, may be granted if manifest to a compensable degree within one year of separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure 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) (2012). A veteran is presumed to be in sound condition when examined and accepted into service except for defects or disorders noted at that time. 38 U.S.C.A. § 1111 (West 2002). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Id. A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a), (b) (2012). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2012). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The Board notes that the language of the aforementioned regulation at 38 C.F.R. § 3.304(b) was amended during the pendency of this appeal, effective May 4, 2005. See 70 Fed. Reg. 23,027-29 (May 4, 2005) (now codified at 38 C.F.R. § 3.304(b) (2012)). The amended regulation requires that VA, rather than the claimant, bear the burden of proving that the disability at issue pre-existed entry into service, and that the disability was not aggravated by service, before the presumption of soundness on entrance into active service may be rebutted. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Cotant v. Principi, 17 Vet. App. 116 (2003). Once the presumption of soundness at entry has been rebutted, aggravation may not be conceded unless the pre-existing condition increased in severity during service, pursuant to 38 C.F.R. § 3.306. See VAOPGCPREC 3-2003 (July 16, 2003). In addition, the usual effects of medical and surgical treatment in service, provided to ameliorate a pre-existing condition, will not be considered service connected unless the disorder is otherwise aggravated by service. 38 C.F.R. § 3.306(b) (1). As noted, under 38 U.S.C.A. § 1111, the presumption of soundness may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein. The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b) (1). Temporary or intermittent flare-ups during service of a pre- existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Initially, the Board notes that the evidence of record does not show, nor does the Veteran assert, that his hypertension had its onset during his first period of service or within the first year thereafter. The evidence clearly shows that it was not until well after separation from his first period of service in 1974 that the Veteran first had problems with high blood pressure and received a diagnosis of hypertension. The record reflects that hypertension was first documented in November 2002, more than 28 years after the Veteran's discharge from his first period of active duty. See 38 C.F.R. §§ 3.307, 3.309. There is no medical evidence that links the Veteran's hypertension to his first period of service. See 38 C.F.R. § 3.303. Because elevated blood pressure - which the December 2012 VA examiner has indicated represented hypertension - was noted at the time of the Veteran's military pre-enlistment examination, the presumption of soundness at service entry does not apply. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Board finds, therefore, that the Veteran's hypertension pre-existed his second period of service. VA's regulations also provide that a preexisting injury or disease will be considered to have been aggravated by active military service where there is a permanent (meaning chronic) increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Here, the Board finds that there is no competent medical evidence that the Veteran's pre-existing hypertension underwent any permanent increase in severity during service. The blood pressure reading noted at the time of his separation examination was in the same general range as the readings recorded during his pre-deployment examination. There are no indications of a worsening of the disease, much less beyond its natural progression. It is noteworthy that, the November 2002 examination noted that the Veteran was on Accupril 20 mg; and, the separation examination in June 2003 noted that the Veteran was seen to refill his prescription of Accupril 20 mg. Moreover, the December 2012 VA examiner stated that the Veteran's currently well controlled hypertension is less likely as not caused by or aggravated by his active military service. There is no medical opinion of record to the contrary. The Board has considered the Veteran's own assertion that his hypertension was aggravated by his second period of service. The Board finds that the Veteran's assertions as to etiology of his medical condition are afforded little probative weight in the absence of evidence that the Veteran has medical training that can provide the expertise to render opinions about medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Where the determinative issue involves a medical opinion, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical etiology do not constitute competent medical evidence, when the question involving etiology goes beyond mere observations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that a veteran is competent to provide a diagnosis of an observable condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In this regard, the consideration of whether his hypertension was worsened beyond the natural progression of the disease is a matter of internal medical that requires medical expertise to determine its exact etiology. As such, the Veteran's statement that his hypertension was worsened as a result of his second period of service is not competent medical evidence. Other than the Veteran's assertions, there is no evidence of record that indicates that his hypertension permanently worsened beyond the natural progression of the disease as a result of his service. In short, the evidence of record is against a finding that the Veteran's pre-existing hypertension was aggravated by his second period of service. See 38 C.F.R. § 3.306(b). In sum, the evidence of record shows that the Veteran's hypertension did not have an onset during his first period of service or within the first year thereafter, and that it existed prior to his entrance into his second period of service but it was not aggravated thereby. The Board finds that the evidence is against the award of service connection. The benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim must be denied. ORDER Service connection for hypertension is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs