Citation Nr: 1316535 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 07-40 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case was previously before the Board in December 2012, at which time it was remanded for further evidentiary development. FINDING OF FACT The Veteran has hypertension that began in service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 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 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); also see Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(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, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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). 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). 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 related to military service, 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. 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). The Veteran's hypertension cannot be presumed to be service connected as a chronic disease under 38 C.F.R. § 3.309, because in order for that provision to apply, the Veteran's hypertension has to have manifested to a compensable level within a year of service, and there is not sufficient evidence that it did. 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). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection on a direct basis. The Veteran's service treatment records are negative for any official diagnosis of hypertension. However, a review of the Veteran's service treatment records demonstrated a blood pressure readings of 134/84 mmHg in January 1984; of 140/90 mmHg in March 1987; of 134/84 mmHg in July 1987; of 128/90 mmHg in September 1987; and of 126/96 mmHg on the Veteran's April 1988 service separation examination. On the April 1988 separation examination, the examining physician also noted a repeat blood pressure reading of 130/84 mmHg. Hypertension, as defined for VA purposes, exists when diastolic blood pressure is predominantly 90 millimeters of mercury (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. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. Therefore, based on the above blood pressure readings in service, the evidence establishes that in service, the Veteran had hypertension meeting the criteria under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7101. Subsequent to service, the first post-service evidence of record demonstrating a diagnosis of hypertension is dated in November 1999. However, the Veteran reported on a February 2012 VA examination that the initial diagnosis of hypertension was in 1995. He also reported at the February 2012 VA examination that beginning in the 1980's, while he was still in service and stationed in Germany, he developed severe recurrent headaches. He related that although he had three or five day blood pressure checks during active duty, diagnosis and treatment did not occur until after retirement. He was currently taking medications and headaches resolved. Concerning the etiology of the Veteran's hypertension, in February 2012, a VA examiner, opined that the Veteran's current hypertension was "less likely as not (less than 50/50 probability)" related to service. In support of this opinion, the examiner noted that the examiner was able to locate only three borderline elevated blood pressure readings over a 21 year span of service. The examiner therefore concluded that there was insufficient inservice evidence to establish a pattern diagnostic of hypertension or suggestive of pre-hypertension. The examination report noted that "pre-hypertension" meant that the individual is likely to end up with high blood pressure unless he/she takes steps to prevent it. It also noted that pre-hypertension exists when the diastolic blood pressure is between 120 and 139 mm/Hg; or systolic blood pressure was between 80 and 89 mm/Hg. In December 2012, the Board found that the February 2012 VA medical opinion was inadequate because the VA examiner relied solely on the absence of hypertension in service in providing the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case was remanded to obtain a supplemental opinion from the same VA examiner. In April 2013, the examiner concluded that following a second review of the Veteran's claims file, he was unable to locate any borderline elevated blood pressure readings over a 21 year span of military service, other than the 134/84 mm/Hg in January 1984, 134/84 mm/Hg in July 1987 during low back pain, and 126/96 mm/Hg and 130/83 mm/Hg on the April 1988 separation examination. The examiner stated that these isolated elevations were insufficient evidence suggestive of essential hypertension or the onset of pre-hypertension because they could be attributed to acute pain or "white coat syndrome," and they were not associated with reported episodes of headaches. However, contrary to the examiner's statement, the Veteran, in fact, reported to the same VA examiner during the February 2012 VA examination, that he developed severe recurrent headaches beginning in the 1980's. In this regard, lay testimony is competent to establish the presence of observable symptomatology, such as headaches, 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); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Board also finds that the Veteran's statements as to the continuing symptoms of headaches since service to be credible. Furthermore, the VA examiner only discussed the elevated blood pressure readings of 134/84 mm/Hg in January 1984, 134/84 mm/Hg in July 1987 during low back pain, and 126/96 mm/Hg and 130/83 mm/Hg, which is indicative of "pre-hypertension," per the explanation offered in the February 2012 VA examination report. However, the examiner neglected to consider the other blood pressure readings of 140/90 mmHg in March 1987 and 128/90 mmHg in September 1987, which as noted above, in combination with the blood pressure reading of 126/96 mmHg on the Veteran's April 1988 service separation examination, shows that the Veteran had hypertension meeting the criteria under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7101. Based on the foregoing reasons, the Board attaches little probative value to the February 2012 and April 2013 VA examiner's opinion as it is based upon an incomplete or inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Because the VA opinion is inadequate, the Board could remand for another opinion. However, because service treatment records demonstrate blood pressure readings meeting the definition of hypertension, and based on the Veteran's lay testimony that he has experienced headaches associated with hypertension since service, the Board concludes that a remand is not necessary here. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Rather, based on the totality of the evidence, and with application of the benefit of the doubt rule of 38 U.S.C.A. § 5107(b), the Board finds that the evidence of record provides an adequate basis on which to grant service connection for hypertension now. Accordingly, resolving the benefit of the doubt in favor of the Veteran, service connection for hypertension is warranted. 38 U.S.C.A. §§ 1154 (a), 5107 (b); 38 C.F.R. §§ 3.102, 3.303(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs