Citation Nr: 1317185 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 00-24 570A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as secondary to PTSD. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2000, June 2006, and February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This case was previously before the Board in May 2011 and November 2012, at which time the claims were remanded for further development. With regard to the issues decided herein, Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Also as was noted in the May 2011 and November 2012 Board remands, the issue of entitlement to service connection for a heart disorder has been raised by the record, but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In this regard, please note the newly enacted diseases eligible for presumptive service connection based on herbicide exposure, which include ischemic heart disease. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records that were reviewed by the RO prior to the most recent February 2013 supplemental statement of the case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has been shown to have hypertension that was first diagnosed more than one year after service, that did not manifest in service, and is unrelated to service. 2. The Veteran has been diagnosed as having congenital arteriovenous malformation (AVM). 3. The Veteran has been shown to have diverticulosis that was first diagnosed many years after service, that did not manifest in service, and is unrelated to service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, may not be presumed to have been so incurred, and is not due to or aggravated by a service-connected disability. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. A gastrointestinal disorder, currently diagnosed as diverticulosis and congenital AVM, was not incurred in or aggravated by service, and is not due to or aggravated by a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the service connection claims, substantially compliant notice was sent in July 2001, March 2006, and May 2011 letters and the claims were readjudicated in a February 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran adequate examinations, obtained medical opinions as to the etiology of disabilities, and afforded the Veteran the opportunity to give testimony before the Board although he declined to do so. All known and available records relevant to the issues decided herein have been obtained and associated with the Veteran's claims file, and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claims at this time. II. Analysis A. Service Connection Claims Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service-connected. See 38 C.F.R. § 3.310. In order to prevail on the issue of service connection there must be competent evidence of a current disability; in-service occurrence or aggravation of a disease or injury; and a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease, which includes hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 hypertension is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that 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). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's September 1969 entrance examination shows that abdomen and viscera and vascular system were normal. His blood pressure readings were 120/80 and 110/60. A that time, he denied a history of high or low blood pressure or any stomach or intestinal trouble. A September 1971 service record indicates that the Veteran complained of stomach trouble and was given medication for diarrhea without cramps. Upon separation in March 1972, the Veteran's abdomen and viscera and vascular system were normal. At that time, the Veteran denied a history of high or low blood pressure and any stomach or intestinal trouble. A January 2003 VA outpatient record indicates that the Veteran's blood pressure was well-controlled. In May 2004, the Veteran underwent an elective outpatient colonoscopy. The indication for the procedure was colon polyps. Following examination, the impression was a single pedunculated polyp in the ascending colon and medium scattered diverticula throughout. The colonoscopy was otherwise normal. The biopsy done of the tissue that was removed was normal but had potential for cancer. January 2006 VA outpatient records demonstrate that the Veteran's blood pressure was well-controlled on medication, per his home testing. His essential hypertension was noted to have begun in November 2001. A July 2007 VA treatment record shows that the Veteran's blood pressure was well-controlled. In June 2011, the Veteran underwent VA examination. He believed he was first told he had hypertension sometime in the 1970s. His service records showed no treatment for hypertension, and his blood pressure was normal at separation. The Veteran complained of congenital AVM in his stomach in April 2010. He was not seen for this in service. Current records show he was seen for AVM and diverticulosis. His service records show only treatment for diarrhea. Following examination, the diagnoses were essential hypertension, congenital AVMs of the stomach, and diverticulosis of the colon. The examiner opined that the Veteran's hypertension was not caused by or related to service, because the service records contained no record of ongoing treatment or condition for hypertension. Also, the congenital AVMs of the stomach and diverticulosis were not caused by or related to service because the AVMs are a congenital condition, not caused by or related to service, and the service records showed no treatment or condition for diverticulosis. In a subsequent June 2011 addendum, the examiner further opined that hypertension was not caused by or aggravated by a service-connected disability because it began after service and was not related to a service-connected disability. The congenital AVM was not caused or aggravated by a service-connected disability because it was congenital and therefore not related to a service-connected disability. Hypertension was less likely than not to have manifested continuously since service, because the Veteran was not sure when he began treatment, and there is no documentation that hypertension began within one year of separation. The congenital AVM was less likely than not to have had manifestations continuously since service because it did not present with symptoms until 2010. The hypertension was less likely than not to have manifestations to a compensable degree within one year of separation, as he stated that he did not begin treatment for hypertension until sometime in the 1970s, and he was not sure about that. In a December 2012 opinion, a VA examiner found that the Veteran had risk factors of hypertension that included age, a long history of substance abuse, race, and obesity. In general, his hypertension appeared to be related to lifestyle factors and not related to his service-connected PTSD. The hypertension did not cause the Veteran to develop hypertension nor did it cause an aggravation (permanent worsening) of his hypertension beyond its natural progression. With regard to diverticulosis, it was caused by poor eating habits, which the Veteran admitted to. Diverticulitis is a complication of diverticulosis and was not produced by PTSD. There were no findings that PTSD aggravated or could change the course of diverticulitis or diverticulosis. It was less likely than not that the Veteran's anxiety disorder, not otherwise specified, caused an aggravation (permanent worsening) of his diverticulosis beyond its natural progression. In a subsequent December 2012 addendum, a VA examiner indicated that the Veteran had a diagnosis of hypertension since October 2000. The Veteran did not know the year of his diagnosis and did not recall taking an anti-hypertensive agent while in service. He quit alcohol and tobacco in 2004 and previously smoked 1.5 packs of cigarettes per day for 45 years and drank one-half pint of liquor per day for 25 years. He reportedly smoked heroin in the 1970s for approximately nine months. With regard to the digestive system, it was noted that the Veteran was diagnosed as having diverticulosis of the colon since February 2002. He did not recall the onset of his diverticulosis, but his VA records show an April 2002 colonoscopy with numerous medium diverticula in the sigmoid. His current symptoms were occasional constipation, spots of blood on bowel movements, a history of hemmorrhia, and chronic use of anti-coagulations medication. The Veteran also reported diarrhea one to two times per week. He had rare constipation less than once a month. The examiner opined that hypertension was less likely than not incurred in or caused by the in-service injury, event, or illness. The Veteran's hypertension did not have its onset in service or was otherwise related to service. The separation physical noted normal blood pressure and heart rate readings. The hypertension was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner rationalize that the diagnosis of PTSD was first shown in 1990, but a discharge summary dated in December 1998 was silent for hypertension. Despite alcohol withdrawal, anemia, and delirium tremens, the Veteran's blood pressure was normal. There was an abnormal blood pressure reading in October 2000. The Veteran's risk factors included age, prolonged use of substance abuse, and race. PTSD symptoms such as stress and anxiety can lead to a temporary, but dramatic, increase in blood pressure. However, the Veteran's history shows that his hypertension is related to the cumulative effects of his lifestyle and genetics. The examiner also noted that there was no evidence of a diagnosis of hypertension prior to PTSD or within nine years of the diagnosis of PTSD. The hypertension was not at least as likely as not aggravated beyond its natural progression by PTSD. His hypertension was controlled on medications, and the Veteran had an overall poor cardiovascular state secondary to other non-service connected conditions. With regard to diverticulosis, the examiner opined that it was less likely than not incurred in or caused by service. The diverticulosis did not have its onset in service and was not otherwise related to service. There was no evidence of record to indicate the presence of diverticulosis in service. The claims file contained one episodic treatment for diarrhea in September 1971, which was likely viral enteritis. It is an acute condition that resolved without sequelae. The separation physical was silent for diarrhea or abdominal complaint. The diverticulosis was also less likely than not proximately due to or the result of the Veteran's service-connected condition. It did not have its onset during service and was not otherwise related to service. The examiner indicated that there was no evidence of record to indicate the presence of diverticulosis in service. The episodic treatment in September 1971 was likely viral enteritis, which was an acute condition that resolved without sequelae. The separation physical was silent for diarrhea or abdominal complaint. The diverticulosis was also less likely than not proximately due to or the result of the Veteran's PTSD. The examiner explained that diverticulosis is the formation of numerous tiny pockets, or diverticula, in the lining of the bowel. Diverticula, which can range from pea-size to much larger, are formed by increased pressure on weakened spots of the intestinal walls by gas, waste, or liquid. Diverticula can form while straining during a bowel movement, such as with constipation. It was very common and occurred in 10 percent of people over age 40 and 50 percent of people over age 60. Diverticulosis does not cause any troublesome symptoms. The examiner further indicated that there was no evidence of diverticulosis prior to 2010, and it was not at least as likely as not aggravated beyond its natural progression by PTSD. The Veteran reported only rare constipation and one to two episodes of diarrhea per week. There was no evidence of progression of diverticulosis. The reason for the multiple colonoscopies was related to bleeding, which is aggravated by chronic Coumadin therapy to prevent a blood clot. In regard to the Veteran's claim of hypertension beginning in service, the Board finds that such a diagnosis was not shown. To determine that a chronic disease was "shown in service," the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. There is nothing in the service treatment records suggestive of hypertension, and the Veteran's blood pressure was normal upon separation. Therefore, chronicity is not established in service. The Board acknowledges the Veteran's contentions that his hypertension began in the 1970s, but he did not provide a more specific time period. The Veteran is certainly competent to report as to the observable symptoms he experiences, such as an onset of his high blood pressure readings, and their history, as well as when a medical provider gave him a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He is competent to report what he may have been told regarding the onset of hypertension. However, the weight of the evidence shows that hypertension was not diagnosed during service. There is no notation in the service records of such a diagnosis or findings of high blood pressure, and the Veteran has not specified that hypertension began during service or within one year, stating only that he believes he was first diagnosed sometime in the 1970s. Therefore, the Veteran's statements are given relatively little probative weight on this matter. Thus, to the extent that the Veteran's statements can be construed to imply that he was diagnosed as having hypertension during service or within one year of separation, the Board finds that the contemporaneous evidence of record is more probative. The Veteran's statements do not establish an onset of hypertension during service, and there is no other evidence that suggests this is the case. As to whether the Veteran's hypertension is secondary to his service-connected PTSD, the Board finds that, while laypersons are often competent to provide opinions as to etiology, the opinions provided by medical professionals, who have specialized training and knowledge, are more probative. Here, the opinions provided by medical professionals are all in agreement. When taken together, they address all issues regarding the Veteran's hypertension claim and adequately discuss the pertinent relevant history. This evidence consistently shows that the major risk factors for the Veteran's hypertension were non-service-connected conditions and that his hypertension was not aggravated by his PTSD, because all of the evidence shows that it was well-controlled on medication. While PTSD might cause acute exacerbations of blood pressure, it did not cause permanent worsening in the Veteran's case. Therefore, the Veteran's hypertension was not incurred in or aggravated by service, nor was it secondary to or aggravated by the service-connected PTSD. As to the claim of entitlement to service connection for a gastrointestinal disorder, the Board notes that the diagnosed disabilities are diverticulosis and congenital AVM. To the extent that a diagnosis of congenital AVM was given, the Board notes that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Therefore, the Board will confine this discussion to an evaluation of diverticulosis. While there is one notation that the Veteran experienced diarrhea during service, there is no lay or medical evidence suggesting that the current diagnosis of diverticulosis is related to this manifestation. Neither the Veteran nor any of the examiners or medical providers has opined that the Veteran's diverticulosis began during service or is related to this one report of diarrhea therein. Therefore, to the extent that the record raises the issue of whether diverticulosis is related directly to service, the overwhelming weight of the evidence is against this finding. As to whether diverticulosis is secondary to the Veteran's service-connected PTSD, to the extent that the Veteran claims that this is the case, the Board finds that the opinion of the VA examiners is more probative. They were based upon the evidence of record and considered the Veteran's statements as well as common medical conclusions in rendering opinions. These opinions, which are adequate, are more probative than the Veteran's lay assertions. Therefore, service connection is not warranted for a gastrointestinal disorder either as directly related to service or as secondary to or aggravated by the service-connected disability. As the evidence preponderates against both of the Veteran's claims, they must be denied. ORDER Service connection for a gastrointestinal disorder, to include as secondary to PTSD, is denied. Service connection for hypertension, to include as secondary to PTSD, is denied. REMAND The Veteran's claim of entitlement to a TDIU must be remanded. As noted above, a claim of entitlement to service connection for a heart disorder has been raised by the record but not yet adjudicated by the AOJ. As a claim of entitlement to a TDIU is inextricably intertwined with this matter, that claim must be developed and adjudicated prior to a final determination as to entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: After adjudicating the claim of entitlement to service connection for a heart disorder, readjudicate the claim of entitlement to a TDIU. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ____________________________________________ J. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs