Citation Nr: 1317032 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 07-30 990A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to July 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA), which found that new and material evidence had not been received to reopen a claim of service connection for hypertension. The case was before the Board in January 2010 when it was remanded so that medical records from the Veteran's National Guard service could be obtained. The case was returned to the Board and, in July 2011, the Board found that new and material evidence had not been received to reopen service connection for hypertension. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims, and the Board's decision was vacated pursuant to a June 2011 Order, following a Joint Motion for Remand (JMR). The parties requested that the Court vacate the Board's July 2011 decision regarding the denial of a reopened claim of service connection for hypertension. The Court granted the motion and remanded the case to the Board. In a January 2013 decision, the Board found that new and material evidence had been received to reopen the claim of service connection for hypertension and remanded the case so that a VA examination could be obtained and for readjudication of the matter. That was accomplished and the case is returned for appellate consideration. FINDINGS OF FACT 1. The Veteran has stated that he manifested hypertension while on active duty and within one year of discharge from active duty. 2. The Veteran's service medical records are not available and have been certified as having been lost. 3. Two copies of service reports of medical history dated in February 1976 for purposes of enlistment into the reserves inconsistently show that the Veteran reported having or having had high or low blood pressure and not having had high or low blood pressure. The original is not available. 4. An April 1978 report of medical history form shows that the Veteran reported not having or having had high or low blood pressure. At that time, the Veteran reported that he was not on any type of medication. 5. The Veteran did not manifest symptoms of hypertension during service or continuously manifest symptoms of hypertension in the years after service. 6. Hypertension was not manifested to a degree of ten percent within one year of service separation. 7. Hypertension is not caused by any in-service event. CONCLUSION OF LAW Hypertension was neither incurred in nor aggravated by service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). the notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. An October 2006 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. That letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, it has been certified that the Veteran's service medical records are unavailable and all efforts to locate them have not been successful. Medical examinations conducted in connection with the Veteran's reserve duty have been associated with the claims folder. All of the Veteran's post-service treatment records have not been secured because a physician from whom the Veteran reported having received treatment from 1972, and who conducted the aforementioned reserve examinations, are not available. Additional post-service treatment records have been secured. The RO arranged for a VA examination in February 2013. Barr v. Nicholson, 21 Vet. App. 303 (2007). It is noted that the Veteran's representative does not believe that the opinion rendered is adequate for appellate consideration as the examiner first stated that it was less likely than not that hypertension was related to service, then stated that an opinion could not be rendered without resorting to speculation. The Board, however, finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and were predicated on a full reading of all available records and took the Veteran's lay testimony into consideration. The examiner provided a detailed rationale for the opinion rendered and merely stated that it would be speculative to have stated that hypertension had become manifested during service or within one year thereof, not that any opinion would be speculative. The Veteran has not identified any evidence that remains outstanding. Therefore, VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). 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) (2012). Where a veteran served for ninety days or more during a period of war, or during peacetime service after December 31, 1946, develops certain chronic diseases, such as hypertension, to a degree of 10 percent or more within one year from separation from service, the chronic disease may be presumed to have been incurred in service even though there is no evidence of the disease during the period of service. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether the requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a) (2012). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt shall be resolved in favor of the Veteran for each such issue. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Competent, credible lay evidence could be sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.38 C.F.R. § 3.159 (2012). Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness. Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (2007). VA must consider the competency of the lay evidence and cannot outright reject lay evidence on the basis that lay evidence can never establish a medical diagnosis or nexus. However, that does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so. The Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 38 U.S.C.A. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009) (). Hypertension The Veteran contends that service connection is warranted for hypertension. He has stated that he was treated for hypertension during service and that high blood pressure was noted on a physical examination performed for employment purposes in 1972. He stated that he was treated by a private physician in 1972, but that that physicians records were destroyed seven years after the physician's death and are not available. Hypertension when the diastolic blood pressure is predominantly 90or greater, and isolated systolic hypertension when the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). A June 2005 statement has been received from a friend of the Veteran related that he remembered that the Veteran was found to have high blood pressure on an employment physical examination conducted in August 1972. He stated that the Veteran was placed on medication at that time and has remained on mediation for hypertension since that time. The Veteran's service medical records are not available for review and all efforts to reconstruct them have not been successful. A copy of a February 1976 enlistment examination for reserve duty purposes has been associated with the claims folder. It is initially noted that there are two copies of Standard Form 93, Report of Medical History, dated in February 1976. One copy shows a box check marked no, which indicates that the Veteran stated that he did not have, nor had he ever had, high or low blood pressure. On the other copy, the same box is check marked yes. The examination report, which is signed by the physician from whom the Veteran stated that he had received treatment soon after service, shows clinical evaluation of the heart and vascular systems to be normal. Blood pressure readings were recorded as 130/75 while sitting, 130/75 while recumbent, and 130/70 while standing. Under summary of defects and diagnoses, the word "none" is written. A second Report of Medical History, Standard Form 93, dated in April 1978 is mostly illegible, but it can be determined that the box next to the standard position where a report of a history of high or low blood pressure is checked "no." An undated page two of an examination report, which appears to be from the report of the April 1978 examination shows only one legible blood pressure reading of 138/80, while sitting. The remaining blood pressure readings are illegible. The notes of significant or interval history shows "none" as does the summary of defects and diagnoses. That examination report is also signed by the physician from whom the Veteran reported receiving treatment after service. VA treatment records show that the Veteran began to receive treatment from VA in 2002. An August 2002 treatment record shows that the Veteran reported a history of hypertension for which he had been on mediation in the past, but not for the past four or five years. A blood pressure reading of 159/90 was recorded. It was recommended that the Veteran be placed on mediation for hypertension. After review of the evidence, the Board finds that the Veteran did not manifest hypertension during service or continuously manifest symptoms of hypertension in the years after service, including to a degree of ten percent within one year of service separation. The Veteran's statements that he was diagnosed as having hypertension while on active duty and in 1972 immediately following service are found to be not wholly credible. Although his friend stated that the Veteran was diagnosed with hypertension in August 1972, that diagnosis was, according to the Veteran's statements by the same physician who examined the Veteran for reserve purposes in 1976 and 1978 when no defect or diagnosis was noted. The 1976 medical history report is not found credible because of the inconsistent checkmarks found on two copies of the same medical history report. Moreover, in light of the normal blood pressure readings recorded at the time of that examination and the notation that the Veteran had no defects or diagnoses, the Board finds that hypertension was not manifested in 1976. The reserve examination in 1978 shows that the Veteran indicated not having or having had high or low blood pressure and again the examining physician indicated that there were no defects or diagnoses. The only legible blood pressure reading at that time was normal. Finally, the Veteran's friend may competently attest to the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. An evaluation of blood pressure readings so as to diagnose hypertension is not considered to be this type of observable observation. The friend may attest to having been told the Veteran had hypertension. Where a claim turns on the question of whether there exists a medical relationship between current disability and service; the Board note that questions of medical diagnosis and causation are within the province of medical professionals. Jones v. Brown, 7 Vet. App. 134 (1994). To whatever extent those statements are being offered on the medical nexus question, as laymen without the appropriate medical training and expertise, neither the Veteran nor his friend is shown to be competent to render a probative opinion on a medical matter. A layman is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). The lay assertions in thus have no probative value as they are not competent evidence. Finally, the Board finds that hypertension is not caused by any in-service event. The Veteran was examined by VA in February 2013 for the purpose of determining whether, considering the lay statements, a medical nexus could be established between the currently diagnosed hypertension and service. After review of the entire record and examination of the Veteran, the examiner indicated that it was less likely than not (less than 50 percent probability) that the hypertension was caused by an in-service injury, event, or illness. The examiner reviewed the statements made at the time of the examination by the Veteran, that he had "borderline hypertension" prior to discharge from service, but noted the inconsistent February 1976 medical history reports and the normal blood pressure readings demonstrated in February 1976. The Veteran was diagnosed with hypertension in August 2002 when he reported having had a past history of hypertension, but at that time he also stated that he had not been on medication for the disability for the past four or five years. As the Veteran's lay statements, including the statement from his friend, that the Veteran had been diagnosed as having hypertension within one year of discharge had not been confirmed by medical professionals, the actual date of onset of the disease could not be stated without resort to speculation. Furthermore, those lay statements of being diagnosed with hypertension within one year would not be adequate to demonstrate that hypertension had manifested to a compensable degree within one year following separation from service, even if they were credible. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs