Citation Nr: 1316531 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 06-16 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension, claimed as due to service-connected posttraumtic stress disorder (PTSD). 2. Entitlement to an initial rating greater than 10 percent for right wrist strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to May 1991. The instant matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a RO hearing in July 2008, and at a Board hearing before the undersigned Veterans Law Judge in February 2010. Transcripts of both hearings are included in the claims folder. By way of background, the Board notes that the instant case was previously before the Board in September 2011, at which time the Board denied entitlement to service connection for a stomach disability and hypertension, both claimed secondary to PTSD. In that decision, the Board also granted service connection for a right wrist disability. Thereafter, the Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In June 2011, the Veteran's representative and VA's General Counsel filed a Joint Motion with the Court to vacate the Board's denials of service connection for a stomach disability and hypertension and to remand those matters, which was granted by the Court that same month. The basis for the Joint Motion was that the Board had erred in relying on inadequate medical examination to deny the Veteran's claims. Upon remand from the Court, the Board remanded the issues of entitlement to service connection for a stomach disability and hypertension for further development in October 2012. Upon completion of that development, the Appeals Management Center (AMC) readjudicated the Veteran's claims and in March 2013, issued both a supplemental statement of the case (SSOC) denying service connection for hypertension and a rating decision granting service connection for a stomach disability. The AMC also assigned a disability rating and effective date in connection with that grant. To date, it does not appear that the Veteran has disagreed with any aspect of the AMC's decision granting service connection for a stomach condition. Thus, the matter is not presently before the Board. Further, as noted above, in its September 2011 decision, the Board granted service connection for a right wrist disability. That grant was effectuated by the RO via a September 2011 rating decision, wherein the Veteran was assigned a disability evaluation of 10 percent for right wrist strain and an effective date of July 26, 2004. The record shows that the Veteran disagreed with the assigned evaluation. Although the issue of entitlement to an initial rating greater than 10 percent for right wrist strain was not certified for appeal, the Board will address this issue for the sole purpose of ensuring the issuance of a statement of the case (SOC) along with information about the process for perfecting an appeal as to that issue, if the Veteran so desires. (The decision below addresses entitlement to service connection for hypertension. The issue of entitlement to a higher initial rating for right wrist strain is addressed in the remand that follows the Board's decision.) FINDING OF FACT Hypertension did not have its clinical onset in service and is not otherwise related to active duty or a service-connected disability; hypertension was not exhibited within the first post service year. CONCLUSION OF LAW Hypertension was not incurred or aggravated in service, hypertension may not be presumed to have been incurred therein, and hypertension is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO received the Veteran's claim of service connection for hypertension in July 2004. In letters dated in August 2004 and November 2005, the Veteran was notified of the evidence required to substantiate his claim. Those letters advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The November 2005 letter specifically advised of him of the criteria for establishing service connection on a secondary basis. Further, in August 2008, the Veteran was sent a letter that included the notice elements required by Dingess, supra. The Veteran's claim was thereafter several times readjudicated. Thus, any error with respect to the timing of notice on those elements was effectively cured in this case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (holding that timing error can be effectively "cured" by providing any necessary VCAA notice followed by a readjudication of the claim). Overall, the Board finds that the Veteran has been provided with adequate VCAA notice and was afforded a meaningful opportunity to participate in the development of his claim. As to any error that may exist with regard to the notice provided in this case, the Board notes that it is the claimant who has the burden of demonstrating that a notice error occurred and that the notice error was prejudicial to the claim. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). No such argument has been made to the Board. Moreover, in previously appealing the Board's denial of the Veteran's claim to the Court, neither the Veteran nor his representative raised an issue with regard to the adequacy of notice provided in this case, nor does the Joint Motion address any notice errors. Regarding the duty to assist, the Board is satisfied that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), VA and private treatment records, VA examination reports, and lay statement in support of his claim, to include his RO and Board hearing testimony. The Veteran has also not identified any outstanding evidence and the Board is aware of none. Further, the Veteran has been afforded multiple VA examinations in connection with his claim for service connection for hypertension. A review of the examination reports reveals that the examiners reviewed the evidence of record before expressing their opinions regarding the likelihood that the Veteran's hypertension was caused or aggravated by his service-connected PTSD. The Board finds that all requested opinions, to specifically include the opinions required by the previous Board's prior remands, have been obtained and that the probative opinions are supported by adequate rationales and also comply with the terms of the Board's prior remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268 (1998). II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including hypertension, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). 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 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2012). (The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of the Veteran's claim. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310 (2012)). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, which version favors the claimant. 38 C.F.R. § 3.310 (2006).) Here, the record shows that the Veteran has a current diagnosis of hypertension and was granted service connection for PTSD in June 2004, effective January 14, 2003. At the outset, the Board notes that it does not appear as though the Veteran is claiming that his hypertension is directly related to his military service. See 38 C.F.R. §§ 3.303, 3.304. Indeed, in support of his claim, the Veteran alleged his belief that his hypertension was related to his PTSD and submitted an internet article suggesting that hypertension may be linked to PTSD. Upon review of the evidence of record, the Board finds that service connection for hypertension on either a direct basis or a presumptive chronic disease basis is not warranted. The Veteran's STRs are silent for complaints or treatment related to high blood pressure. The report of his April 1991 separation examination recorded his blood pressure to be 110/70 and on the accompanying Report of Medical History, the Veteran denied having high or low blood pressure. The first indication of hypertension contained in his post-service medical records is in March 2001 when blood pressure readings showed an elevated diastolic blood pressure highly suggestive of hypertension. The Veteran was placed on a modified diet and exercise routine for six months, after which he was prescribed 10 milligrams of Lisinopril, daily. A review of the medical evidence of record also fails to reveal any indication that the Veteran's hypertension may be directly related to service. Overall, the Board finds that the evidence of record does not support a finding of service connection for hypertension on a direct basis or as a presumptive chronic disease. Indeed, there is simply no evidence to suggest that the Veteran's hypertension manifested itself as a chronic disease within one year of discharge from service. See 38 C.F.R. §§ 3.307, 3.309. There is also no evidence of hypertension in service or of a continuity of symptoms since service. Further, no medical provider has linked the Veteran's hypertension directly to service. In short, there is no basis upon which to conclude that the Veteran's hypertension is in any way directly attributable to service. Turning to the question of whether the Veteran's service-connected PTSD may have caused or aggravated the Veteran's hypertension, the relevant evidence of record shows that in a June 2008 opinion, the Veteran's VA treating psychiatrist stated that it was possible that the Veteran's PTSD either causes or exacerbates his physical ailments, which included hypertension. At the outset, the Board notes that the clinician's use of the term "possible" renders that opinion, to the extent that it is evidence supportive of the Veteran's claim on a secondary basis, speculative, especially in light of the fact that the clinician provides absolutely no rationale for her opinion in this regard. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (discussing adequacy of medical opinions and stating that to be adequate, an opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence). In December 2008, the same treating VA psychiatrist submitted essentially the same correspondence but stated that it was likely that the PTSD either causes or exacerbates his physical ailments, which included hypertension. Again, however, the VA clinician failed to provide any rationale for her opinion in this regard. The Veteran has also been afforded several VA examinations in connection with his claim. Upon review of the claims folder and examination of the Veteran a VA examiner in November 2008 opined that the Veteran's hypertension was neither secondary to his PTSD, nor aggravated by it. As noted by the Board in an April 2010 remand decision, the VA examiner failed to provide a rationale for his negative opinion. The Veteran was afforded another VA examination in December 2010. The examiner noted that the Veteran had been diagnosed as having hypertension approximately eight to nine years earlier. As to whether the Veteran's PTSD had caused or aggravated his hypertension, the examiner explained that hypertension is a multifactorial condition and rarely is it due to one single identifiable cause. The examiner stated that PTSD has not been shown to be a single identifiable cause of hypertension, may be an aggravating factor in a patient with hypertension. The examiner therefore opined that it was less likely than not that the Veteran's hypertension was caused by his PTSD. Regarding whether it was aggravated by such, the examiner stated that any increase in the degree of hypertension due to this arguable aggravating factor of PTSD is not measurable or determinable, and the role of hypertension in PTSD is speculative and more likely than not will lead to different answers and opinions from different clinicians. The examiner's opinion was that the Veteran's hypertension may have a small, but not measurable, effect on the Veteran's hypertension, but that his hypertension was due to multiple factors other than PTSD. As noted by the parties in their August 2012 JMR, the examiner's opinion that the PTSD may have a "small" effect on the Veteran's hypertension suggests that there is aggravation of the disability, but the subsequent statement that there is no "measureable or determinable" effect on hypertension seemingly indicates no aggravation. The parties thus agreed that the December 2010 VA examiner's opinion lacked clarity and that a new examination and opinion was therefore required. The Veteran was afforded another VA examination in November 2012. The examiner indicated review of the claims folder prior to examination of the Veteran, noting that the Veteran had been diagnosed as having hypertension in 2001 and was placed on oral medication. The examiner then noted that the Veteran was diagnosed with PTSD in 2003 and stated that there is no established causal relationship between PTSD and hypertension. The examiner thus opined that it was less likely than not that the Veteran hypertension was proximately due to his service-connected PTSD. As to whether the Veteran's PTSD had aggravated his hypertension, the examiner noted that when the Veteran was first diagnosed with hypertension, he was placed on 10 milligrams of Lisinopril daily. The examiner then stated that the Veteran's hypertension had been under good control with such medication since that time and that he was currently prescribed 10 milligrams of Lisinopril daily for treatment of his hypertension. The examiner thus opined that the Veteran's hypertension did not undergo a permanent increase in its severity due to his PTSD. Upon review of the evidence of record, the Board also finds there to be no basis upon which to award service connection for hypertension as secondary to PTSD. As to whether the Veteran's service-connected PTSD has caused or made chronically worse the Veteran's hypertension, the Board finds particularly probative the VA examiners' opinions of record. Concerning the first aspect of a secondary service connection claim, both December 2010 and November 2012 VA examiner's opinion against a causal relationship between the Veteran's hypertension and PTSD. The December 2010 examiner noted that the PTSD had not been shown to be a single identifiable cause of hypertension, which opinion was shared by the November 2012 VA examiner who stated that there is no established causal relationship between PTSD and hypertension. (In this regard, the Board notes that it does not appear as though the Veteran's representative before the Court raised an issue with the adequacy of the December 2010 VA examiner's opinion on the first aspect of secondary service connection, as the Joint Motion contains no reference to any error in this regard.) Further, the November 2012 VA examiner pointed out that the onset of the Veteran's hypertension was two years prior to him being diagnosed as having PTSD. As noted above, although the Veteran's VA treating psychiatrist has stated that it was possible and/or likely that the Veteran's PTSD caused his physical ailments, included hypertension, the lack of any supporting rationale renders those opinions inadequate to rely upon in this case, especially in light of the VA examiners' opinions to the contrary, for which they have provided at least some rationale. See Stefl, 21 Vet. App. at 123 (stating that a medical opinion arising from a medical examination is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one'" (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994))). With respect to whether the Veteran's PTSD has aggravated the Veteran's hypertension, the November 2012 VA examiner found no evidence to support a finding of aggravation. The examiner based this opinion on the fact that the Veteran's hypertension has been managed since onset with a prescribed dose of Lisinopril of 10 milligrams daily. Implicit in this opinion is a conclusion that had the Veteran's PTSD caused a chronic worsening of his hypertension, some change in treatment would have occurred, such as switching to a different medication or an increase in the dosage of the Veteran's prescribed Lisinopril. Moreover, there is no suggestion of a measurable increase in hypertension symptomatology. Again, to the extent that the Veteran's VA treating psychiatrist has stated that the Veteran's hypertension was exacerbated by his PTSD, that opinion is not adequate to rely upon in this case as there is no supporting rationale. In consideration of the evidence of record, the Board finds that the Veteran does not have hypertension that was caused or been made worse by his service-connected PTSD. In rendering this finding, the Board has considered the statements of the Veteran's VA treating psychiatrist, which, as noted above, are not supported by any rationale and are thus inadequate to rely upon in this case. See Stefl and Ardison, both supra. Rather, the Board finds probative the December 2010 and November 2012 VA examiners' opinions, as those examiners provided at least some rationale for their opinions, which rationale was based on the evidence of record and their knowledge as medical professionals. Further, while the Veteran believes that his hypertension has been caused or aggravated by his PTSD, the Board notes that generally etiology of dysfunctions and disorders is a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion with regard to his hypertension, especially in light of the VA examiners' opinions to the contrary. See Jandreau, supra. For the foregoing reasons, the Board finds that the claim of service connection for hypertension must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection for hypertension. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2012). ORDER Service connection for hypertension is denied. REMAND In a September 2011 rating decision, the RO awarded service connection for a right wrist strain, evaluated as 30 percent disabling, with an effective date of July 26, 2004. The Veteran was notified of the decision by a letter dated that the following month. In October 2011, the Veteran submitted a statement wherein he disagreed with the disability rating assigned, alleging entitlement to a rating of 30 percent. Notably, the Veteran's statement is identified as a notice of disagreement by stamp dated on October 25, 2011. However, a statement of the case (SOC) has not yet been furnished concerning the Veteran's disagreement with the10 percent evaluation assigned in connection with his award of service connection for right wrist strain. An SOC is required when a claimant protests a determination. 38 C.F.R. § 19.26 (2012). To date, no SOC has been furnished concerning the issue outlined above, or at least no SOC has been associated with the either the Veteran's Virtual VA file or the paper claims file that is now before the Board. Therefore, remand is required for the issuance of an SOC regarding the issue of entitlement to an initial rating in excess of 10 percent for right wrist strain. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The SOC must be issued unless the Veteran's claim is resolved, such as by a complete grant of the benefit sought, or withdrawal of the NOD. The remanding of this issue must not be read as an acceptance of jurisdiction over the same by the Board. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely NOD to a decision denying the benefit sought and a timely substantive appeal after issuance of a SOC. 38 U.S.C.A. § 7105 (West 2002); Roy v. Brown, 5 Vet. App. 554 (1993). The agency of original jurisdiction (AOJ) should return the issue to the Board only if the Veteran perfects his appeal in accordance with the provisions of 38 U.S.C.A. § 7105. Accordingly, the case is REMANDED to the AOJ for the following action: The AOJ must issue a SOC addressing the issue of entitlement to an initial rating in excess of 10 percent for right wrist strain. The Veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). If, and only if, the appeal is timely perfected, the issue should be returned to the Board for further appellate consideration. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs