Citation Nr: 1316309 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 08-06 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for arterial hypertension. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1978 to December 1984. He thereafter served in the Army Reserve, during which time he was activated for a second period of active duty from November 2004 to January 2006, which included deployments to Iraq and Afghanistan. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for arterial hypertension. In August 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development. Thereafter, the denial of the claim for service connection for arterial hypertension was confirmed in an August 2012 rating decision/supplemental statement of the case. The case was returned to the Board in December 2012 and the Veteran now continues his appeal. (Two other issues pertaining to claims of entitlement to service connection for a chronic acquired psychiatric disorder and a chronic right shoulder disability were also on appeal before the Board. However, VA compensation for these disabilities was ultimately allowed in an October 2012 rating decision. As this constituted a full grant of the benefit sought, these issues are not in controversy and are no longer on appeal before the Board.) The Board notes that the Veteran had been previously been represented in this claim by Disabled American Veterans (DAV). However, in correspondence signed and dated in September 2012, he expressly revoked DAV's power of attorney and dismissed this veterans service organization as his representative. He is currently representing himself pro se in this appeal. FINDINGS OF FACT Arterial hypertension did not have its onset during active military service. CONCLUSION OF LAW Arterial hypertension was not incurred, nor is it presumed to have been incurred during active duty. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the service connection claim decided herein, generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) was revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The arterial hypertension claim on appeal stems from the Veteran's application for VA compensation, which was filed in March 2006. In response, VCAA notice letters addressing the applicability of the VCAA to this specific claim and of VA's obligations to the Veteran in developing this claim were dispatched to the Veteran in April 2006, which addressed the matter and satisfied the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As fully compliant notice preceded the initial adjudication of the Veteran's claim for service connection for arterial hypertension in the May 2007 rating decision currently on appeal, there was no defect in the timing of this notice. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. The Board observes that the Veteran's service treatment records from his two periods of active duty and intervening Army reserve service have been obtained and associated with the claims file. The Board notes that in correspondence dated in September 2012, the Veteran reported that he received his treatment for hypertension at the San Juan VA Medical Center and requested that all records pertaining to such treatment be obtained. In this regard, VA clinical records pertinent to 2001 - 2005 and the period after his latest period of active duty (i.e., from 2006 to 2012) have been obtained and associated with the claims file. These include records viewable in the Virtual VA electronic database. The Veteran has been afforded ample opportunity to submit evidence in support of his claim or otherwise notify the Board of any additional relevant evidence that is not presently associated with his claims file. Pursuant to the Board's instructions in its August 2011 remand, the Veteran was provided with a VA examination in September 2011 to address his hypertension claim, during which the examining VA clinician had opportunity to review the Veteran's pertinent medical history, perform an examination, and provide a nexus opinion regarding onset of his arterial hypertension in the context of this clinical history. Therefore, the Board finds this examination to be adequate for purposes of adjudicating the claim decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board further finds that the RO/AMC has at least substantially complied with the Board's remand instructions of August 2011. Therefore, an additional remand for further corrective action for compliance with the August 2011 remand is not warranted. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board is ultimately satisfied that the evidence is sufficiently developed for appellate adjudication and that no further development is necessary with respect to the claim for VA compensation for arterial hypertension. The Veteran is representing himself in the current appeal and has received ample assistance from VA in the development of his claim and, as previously noted, has had opportunity to submit additional evidence in support of the claim up to the time when the case was received by the Board in December 2012. He has not indicated that there are any outstanding relevant medical or service records or other pertinent evidence that must be considered in this current appeal with respect to the issue decided herein. Further, the Board has searched the Veteran's claim on the Virtual VA electronic database for any other additional VA medical records pertinent to his claim. Based on the foregoing, the Board finds that VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his service connection claim decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of the hypertension claim on appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). With chronic disability or disease shown as such in service (or manifested to at least a compensable degree within the one-year presumptive period following separation from service under 38 C.F.R. § 3.307 for hypertensive vascular disease) 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. This rule does not mean that any notation of elevated systolic and/or diastolic blood pressure during service will permit service connection for essential hypertension, first shown as a clear-cut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 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). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes at this juncture that service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In this regard, the Board observes that the Veteran is presently service-connected for tension migraine headaches, cervical spondylosis and myositis, bilateral plantar fasciitis, right shoulder impingement syndrome, degenerative disc disease of his thoracolumbar spine with muscle spasm, and a depressive disorder. However, the Veteran does not assert that that his hypertension is secondarily related to these aforementioned service-connected disabilities, and the medical record does not otherwise objectively indicate or aver any such relationship. Therefore, the Board concludes that there is no evidence that would allow the Veteran's claim for VA compensation for hypertension on this basis. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102 (2012). The Veteran alleges that he was first diagnosed and treated for hypertension during his second period of active duty. In the alternative, he contends that arterial hypertension was definitively diagnosed almost immediately after his separation from this second period of active duty and is a chronic disease that warrants an award of service connection because it was diagnosed in such close proximity in time to his latter period of military service. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), provides the criteria for rating hypertensive vascular disease and states that 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 Diagnostic Code, the term hypertension means that the diastolic blood pressure, measured in millimeters of mercury (mm/Hg), is predominantly 90 mm/Hg or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm/Hg or greater with a diastolic blood pressure of less than 90 mm/Hg. A 10 percent evaluation for hypertension, which is the minimum compensable evaluation provided by Diagnostic Code 7101, is assigned when diastolic pressure is predominantly 100 mm/Hg or more, or; systolic pressure is predominantly 160 mm/Hg or more, or; a history of diastolic pressure predominantly 100 mm/Hg or more that requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). In this regard, the Veteran's service medical records for both periods of active duty and the records relating to the intervening period of Army Reserve show no diagnosis of essential hypertension. Blood pressure readings obtained throughout these periods show normal systolic/diastolic pressures. Although a single notation of elevated systolic pressure at 141/83 mm/Hg was obtained in March 2005, no other systolic readings were presented that met or exceeded 140 mm/Hg (much less 160 mm/Hg) and no diastolic readings were obtained that met or exceeded 90 mm/Hg during the entirety of the Veteran's periods of active duty and Army Reserve service. The Veteran was honorably discharged from his latest period of active duty in January 2006. Post-service VA medical records for the one-year period immediately following discharge (i.e., from January 2006 to January 2007) show that he was first diagnosed with essential hypertension in March 2006, based on fluctuating periods of elevated systolic readings at or above 140 mm/Hg and diastolic readings at or above 90 mm/Hg, for which he was prescribed anti-hypertensive medication. However, no systolic blood pressure readings were obtained that were at or above 160 mm/Hg and no diastolic blood pressure readings were obtained that were at or above 100 mm/Hg at any time during the one-year period immediately following the Veteran's separation from service in January 2006. The report of a September 2011 VA cardiovascular examination shows that the examining physician had reviewed the Veteran's relevant clinical history contained in his claims file and, after examination, presented a diagnosis of essential hypertension and the following nexus opinion: It is less likely as not that the veteran's hypertension had its onset during active duty. [The] Veteran was shown to have borderline readings of his [blood pressure] in much of 2005, but there is no record indicating a diagnosis of hypertension while on active duty. [The] Veteran has been on treatment for hypertension since shortly after he was discharged in January 2006. [However], the available records do not show on onset during service. I cannot determine the etiology of the veteran's hypertension since essential hypertension is considered an idiopathic disease. The cause of this disease in unknown. In view of the foregoing discussion, the Board concludes that the weight of the evidence is against the Veteran's claim of entitlement to service connection for arterial hypertension on a direct or presumptive basis. Although a single elevated systolic reading of 141 mm/Hg was obtained in service in March 2005, there is no objective presentation of a diagnosis of hypertension in service. Notwithstanding the diagnosis of hypertension presented in March 2006, approximately two and a half months after the Veteran's discharge from service, the clinical records demonstrate that his hypertension was not manifested by compensably disabling symptoms during the one-year period immediately following his service separation. Specifically, the medical evidence does no demonstrate sustained systolic pressures of 160 mm/Hg or more, or sustained diastolic pressures of 100 mm/Hg or more (or a history of diastolic pressure predominantly 100 mm/Hg or more that requires continuous medication for control). Finally, the VA physician's nexus opinion of September 2011 determined that it was less likely than not that the Veteran's essential hypertension had its onset in military service, even despite being first diagnosed less than three months after his discharge from active duty. The aforementioned objective evidence weighs heavily against a finding of service connection for the Veteran's hypertension. The Board finds that the Veteran's account of being diagnosed and treated for hypertension during active service is contradicted by the objective clinical record, which shows no such history; his account is therefore deemed not credible for purposes of establishing a link between his current essential hypertension diagnosis and military service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although lay persons such as the Veteran are competent to provide opinions on some medical issues, the specific matter here (hypertensive vascular disease) falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose essential hypertension). Hypertensive vascular disease is not a syndrome that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows it is verifiable only through medical examination and multiple blood pressure readings obtained under clinically monitored conditions by a trained physician. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); & Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran is not competent to self-diagnosis his arterial hypertension and he has not been shown to possess the requisite medical training, expertise, or credentials needed to render such a diagnosis or a competent opinion as to its medical causation. Indeed, the September 2011 VA examiner determined that the Veteran's essential hypertension was idiopathic in nature and its cause and etiology was therefore unknown. Otherwise, nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating cardiovascular diseases. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Thus, his lay assertions and statements do not constitute competent medical evidence and lack probative value. In view of the foregoing discussion, the Board must deny the Veteran's appeal for service connection for arterial hypertension as the preponderance of the evidence is against allowing his claim. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for arterial hypertension is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs