Citation Nr: 1317983 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 06-13 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The issue currently on appeal was last before the Board in May 2011 when it was remanded for additional evidentiary development. In May 2011, the Board also remanded the issue of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). In a September 2012 rating decision, the Appeals Management Center granted entitlement to TDIU, effective June 15, 2012. In written argument submitted in March 2013, the Veteran's representative stated that the September 2012 grant of TDIU represented a complete grant of the benefit sought. The Board has limited its consideration accordingly. The Veteran testified at a travel Board hearing in August 2010 before a Veterans Law Judge who is no longer employed by the Board. In a November 2012 letter, the Veteran was informed of this and his options for another Board hearing. In a December 2012 response, the Veteran indicated that he did not desire another Board hearing. A transcript of the August 2012 hearing is of record. The record before the Board consists of the Veteran's paper claims files and an electronic record known as Virtual VA. FINDING OF FACT Hypertension was not present until more than one year following the Veteran's discharge from service, it is not etiologically related to his active service, and it was not caused or permanently worsened by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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 but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, 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 Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Pursuant to the Board's remand directive, the Veteran was provided all required notice via correspondence dated in December 2010 and January 2011. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to assist has also been met in this case. The Veteran's service treatment records and identified VA and private medical records have been obtained to the extent possible. The Veteran has been afforded appropriate VA examinations in connection with the claim. The reports of the September 2004, November 2004 and December 2010 VA examinations reveal the examiners had access to and reviewed the evidence of record and also performed physical examinations of the Veteran. The examiners determined that the Veteran's hypertension was not linked to active duty or to a service-connected disability. The opinions were supported by adequate rationales. The Veteran has alleged, at the time of his August 2010 hearing, that his hypertension was caused by his exposure to herbicides including Agent Orange. The Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, there is no competent evidence indicating that the claimed disability may be associated with the Veteran's exposure to herbicides or otherwise associated with service. Therefore, VA has no obligation to provide an examination or obtain an opinion in response to this contention. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any additional evidence that could be obtained to substantiate the claim. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests hypertension to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. 38 U.S.C.A. § 1116(a) provides presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in 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. It also provides presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines in regulations prescribed under this section warrants a presumption of service connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within a period (if any) prescribed in such regulations in 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. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b)(1). In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991 [note to this section], and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review. 38 U.S.C.A. § 1116(b)(2). An association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for the purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against this association. 38 U.S.C.A. § 1116(b)(3). Hypertension is not among the diseases specified in 38 U.S.C.A. § 1116(a). In addition, the Secretary has not determined, on the basis of sound medical and scientific evidence, that a positive association exists between the exposure of humans to an herbicide agent and the occurrence of hypertension in humans. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also 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), citing Gilbert, 1 Vet. App. At 54. Analysis The Veteran is claiming entitlement to service connection for hypertension. Initially, the Board notes that the competent medical evidence of record dated beginning in the late 1990's documents diagnoses of and treatment for hypertension. The question on appeal revolves around the etiology of the currently existing hypertension. The Board finds that service connection is not warranted for hypertension on a presumptive basis. As set forth above, hypertension is not subject to presumptive service connection on the basis of herbicide exposure. With respect to the presumptive disease presumption, the service treatment records are negative for evidence of hypertension. Clinical evaluation of all systems was determined to be normal at the time of the April 1971 separation examination. Blood pressure at that time was 104/64. There is no competent evidence suggesting the presence of hypertension to any degree within one year of discharge. The first evidence of a diagnosis of hypertension is dated in the 1990's. To the extent, if any, that the Veteran has alleged hypertension was present to a compensable degree within one year of discharge, these allegations are without probative value. In this regard the Board notes that the Veteran is a lay person who does not possess the expertise required to diagnose hypertension and he has not alleged that any health care provider diagnosed him with hypertension within one year of his discharge from service. The Board finds that service connection is not warranted for hypertension on a direct basis or a secondary basis. As set out above, the service treatment records are negative for evidence of hypertension and there is no medical evidence suggesting the presence of hypertension until many years following the Veteran's discharge from service. Furthermore, there is no competent evidence of record linking the Veteran's hypertension to his active service (to include exposure to herbicides) or his service-connected PTSD. No health care professional has provided an opinion linking the Veteran's hypertension to his active service or to a service-connected disability. There is competent probative evidence of record demonstrating that the current hypertension is not etiologically linked to the Veteran's active service or to PTSD, his only service-connected disability, . An Agent Orange protocol examination was conducted in November 2004. The pertinent diagnosis was hypertension which was under control at the time of the examination. The examiner opined that the Veteran's hypertension was not likely caused or aggravated in the recent past by diabetes. At the time of a September 2004 VA examination, it was observed that the Veteran had had diabetes mellitus type II which had existed for the past two months. It was noted that the Veteran had a history of hypertension for six years and was on medication. The pertinent diagnosis included in an addendum to the examination report was hypertension on medication. The examiner wrote that the hypertension was a complication of diabetes. The reports of the November 2004 and September 2004 VA examinations are conflicting in findings regarding whether the current hypertension was due to diabetes mellitus. However, service connection is not in effect for diabetes mellitus so this conflict does not change the outcome of this decision. Neither examination report linked hypertension to active duty or to the service-connected PTSD. A VA hypertension examination was conducted in December 2010. The Veteran informed the examiner that his hypertension began in 1974 or 1975 and his diabetes began in 1984. Physical examination was conducted. The examiner opined that it was not likely that the Veteran's hypertension was related to military service or any psychiatric diagnosis related to military service. The rationale was that the Veteran reported he had hypertension for 35 years without evidence of coronary artery or myocardial muscle abnormality and his blood pressure is currently well controlled on minimum medication. The examiner observed that in his 40 years of medical practice and 8 years of performing compensation and pension examinations, when hypertension was associated with PTSD, it was usually complicated, hard to control and varies depending upon the control of the PTSD or psychological or psychiatric problems that the Veteran has. An addendum to the hypertension examination report was prepared in August 2011. The examiner wrote that he examined the evidence of record. It was observed that the Veteran continued to be treated for hypertension and psychiatric conditions. The hypertension was controlled on small amounts of medication. The examiner observed that the Veteran never had complications of hypertension nor did he have labile or hard to control hypertension. Based on this, the examiner opined that there is no evidence that the Veteran's hypertension was aggravated by his service-connected PTSD or any other physical or mental etiology. The Board finds the etiology opinions included in the reports of the VA examinations are to be accorded significant probative weight. The examiners reviewed the Veteran's pertinent history and also conducted physical examinations of the Veteran. Opinions were advanced which found that the Veteran's hypertension was not etiologically linked to active duty or to a service-connected disability. The opinions were supported by adequate rationale with citations to the medical evidence in the claims file. The Board notes the rationale provided in the December 2010 VA examination report and the August 2011 addendum rests, in part, on the finding that the Veteran's hypertension was not labile or hard to control. The Board further notes that there is a June 2004 clinical record which includes the annotation that the Veteran had hypertension which was poorly controlled. Significantly, the vast majority of the medical records which address the status of the Veteran's hypertension all found that the hypertension was well controlled and not labile. The Board finds the preponderance of the competent medical evidence supports the determination that the Veteran's hypertension is well controlled. Thus, the rationale provided for why it was decided the Veteran's hypertension was not secondary to his service-connected PTSD is adequate. The evidence supporting the Veteran's claim is limited to his own statements. In his August 2010 hearing testimony, the Veteran opined that his hypertension was due to his exposure to Agent Orange, to his PTSD or due to diabetes. He also claimed the hypertension was aggravated by PTSD and diabetes. The Veteran provided conflicting evidence as to whether a physician had linked hypertension to his mental disorder. He seemed to indicate that a physician had provided such a link and then immediately testified that no doctor had ever given him a diagnosis or prognosis as to the cause and effect of his hypertension. When asked directly which physician had linked hypertension to PTSD, the Veteran's answer was "None at all." The Veteran's unequivocal response supports the Board's determination that no health care professional has linked hypertension to his PTSD. As discussed above, the Veteran is a lay person. His opinion as to the etiology of his current hypertension is without probative value. For the foregoing reasons, the Board finds that the claim for service connection for hypertension must be denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for hypertension, to include as secondary to PTSD, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs