Citation Nr: 1318593 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-13 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for hypertension, to include as a result of exposure to herbicides. 2. Entitlement to service connection for hepatitis C, to include as a result of exposure to herbicides. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to June 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection for hypertension and hepatitis C. In April 2013, the Veteran withdrew his request for a Travel Board hearing. The issue of entitlement to service connection for hepatitis C 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. FINDING OF FACT Hypertension was not present in service or until years thereafter and is not etiologically related to service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active military service and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In July 2008 and November 2008 letters, issued prior to the initial adjudication of the claims, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection. The letters satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a Veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claim in the July 2008 letter. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The VCAA also provides 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. VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA and private treatment records. The Board acknowledges that the Veteran has not been afforded a VA examination for his claimed hypertension. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran contends that he was exposed to herbicides while serving in Vietnam. As discussed below, his exposure to herbicides in Vietnam is conceded, however, there is no competent evidence that his hypertension may be related to exposure to herbicides in Vietnam. The Veteran has not reported a continuity of symptomatology beginning in service. His assertion that hypertension is the result of herbicide exposure is insufficient to trigger VA's duty to provide an examination. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (a Veteran's assertion that one condition was caused by another is insufficient to trigger VA's duty to provide an examination). Accordingly, a medical examination or opinion is not required for the claim for service connection for hypertension. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As hypertension is recognized as chronic under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is for application. Id. In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests hypertension to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred 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, 1137; 38 C.F.R. §§ 3.307, 3.309. 38 U.S.C.A. § 1116(a) (West 2002) 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 the 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). The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). 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 the 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 (A) the exposure of humans to an herbicide agent, and (B) the occurrence of hypertension in humans. See 38 C.F.R. § 3.309(e). 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 the 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 (2010); 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 does not contend nor is there any medical evidence suggesting that his currently demonstrated hypertension was present in service or manifested within one year of his discharge from service. The Veteran does contend that his hypertension was caused by his exposure to herbicides while serving in Vietnam. Because the Veteran served in Vietnam, his exposure to herbicides is presumed. 38 C.F.R. § 3.307(a)(6)(iii). However, as noted above, hypertension is not subject to presumptive service connection on the basis of herbicide exposure because the Secretary has not determined, 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 hypertension in humans. The Veteran could, nonetheless establish service connection with evidence of direct incurrence. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The current record contains no evidence of a nexus between the Veteran's military service and his hypertension. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to high blood pressure or hypertension during the Veteran's active military service, and the Veteran has reported no in-service symptoms.. The post-service medical evidence of record, which consists of outpatient treatment records from the VA Medical Center in Syracuse, New York dated from May 2008 to June 2011, private treatment records from Internist Associates of New York, and private treatment records from Strong Memorial Hospital show that the Veteran underwent a liver transplant in February 2008 and later that year, he was diagnosed with hypertension and started on medication to treat the disorder. May 2008 VA outpatient treatment notes indicate that his history of elevated blood pressure readings was likely secondary steroid medication, including prednisone, taken for his liver transplant. These records do not indicate that the Veteran's hypertension is related to his active military service. There is no evidence otherwise linking the current disability to service. The Veteran has not reported a continuity of symptomatology beginning in service and there is no other evidence, VA or private, which indicates that the Veteran's hypertension may be related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of hypertension, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence, including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id. cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that hypertension was initially shown many years after the Veteran's discharge from service. The Veteran is competent to report the symptoms of his disability; however, it would require medical expertise to say that the current hypertension, identified long after service, is the result of a disease or injury in service. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his hypertension. 38 C.F.R. § 3.159(a)(1),(2) (2012). For the reasons and basis stated above, the Board finds that service connection for hypertension on a direct or presumptive basis is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Service connection for hypertension is denied. REMAND Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran contends that his currently demonstrated hepatitis C is related to his active military service, to include exposure to herbicides during active duty in Vietnam. He has reported that his in-service risk factors for contracting the virus included unprotected sex with prostitutes in Vietnam, inoculations during military service with air gun injectors, exposure to blood from dead and wounded American and Vietnamese soldiers during combat in Vietnam, and undergoing several days of tranquilizer treatment in the Spring of 1967 during active duty, which he believes left him vulnerable to contracting the hepatitis C virus. Service treatment records indicate that the Veteran was treated with tranquilizers during inpatient psychiatric treatment in March 1967. The Veteran also reported that he used intravenous (IV) drugs once with a friend after service. See July 2008, November 2008, and December 2010 statements from the Veteran and April 2009 VA Form 9. In addition, VA outpatient treatment records indicate that the Veteran reported being a heavy drinker at one time. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to hepatitis C. However, the record indicates that the Veteran served in combat during the Vietnam War. Thus, the Board finds that the conditions of his service are consistent with his reports of being exposed to blood from injured soldiers. 38 U.S.C.A. § 5104(a). Accordingly, the Board finds the Veteran's reports to be credible. The post-service medical evidence of record shows that the Veteran was diagnosed with hepatitis C sometime between 1989 and 1990, and that he underwent a liver transplant in February 2008. In a June 2010 statement, the Veteran's private physician M.K.. MD, who had been treating him since 1990, opined that the Veteran probably contracted hepatitis C sometime in the 1960's (which would have been during the Veteran's military service). Dr. M.K. did not indicate that he had reviewed the Veteran's claims file and did not provide a rationale for his opinion. Accordingly, the Board finds that the opinion is inadequate for rating purposes. The Veteran has reported several in-service risk factors for hepatitis C and as noted above, the Board finds his reports to be credible. The post-service medical evidence of record shows that the Veteran has been diagnosed with hepatitis C. However, contemporaneous evidence of hepatitis C in the years following service is not of record. The only medical opinion of record concerning the etiology of the Veteran's hepatitis C has been determined to be inadequate for rating purposes. Accordingly, another examination and opinion is needed to determine the etiology of any currently demonstrated hepatitis C. 38 U.S.C.A. § 5103A(d) (West 2002). The Board also notes that the Veteran has reported that he was medivaced from Vietnam and woke up in a Naval Hospital in Yokosuka, Japan. He claims that he was told that he was in a coma for approximately 22 days, but he is not sure of the nature of his illness at that time. See November 2008 statement from the Veteran. Service treatment records indicate that the Veteran was treated at the U.S. Naval Hospital in Yokosuka, Japan in 1967, where he was diagnosed with psychophysiological musculoskeletal reaction. The claims file contains an August 2010 request from the Veteran's representative to the VA for copies of the Veteran's service treatment records, including documentation of his hospital stay in Japan in 1967. The Veteran's service treatment records and personnel records are associated with the claims file. However, clinical records of the Veteran's treatment at the U.S. Naval Hospital in Yokosuka, Japan are not currently associated with the claims file, and the record does not reflect that the RO has attempted to obtain these records. The procurement of potentially pertinent medical records referenced by the Veteran is required. As it appears that there may be available VA medical records that are not associated with the claims folder, a remand is required. See 38 C.F.R. § 3.159(c)(2). The provisions of 38 C.F.R. § 3.159(c) provide that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. If VA is unable to obtain such records, VA must provide the claimant with oral or written notice of that fact. The notice must contain various information, including an explanation of the efforts VA made to obtain the records and a description of any further action VA will take regarding the claim. 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain records from the U.S. Naval Hospital in Yokosuka, Japan, of any treatment for the Veteran in 1967. If the RO or the AMC is unsuccessful in obtaining any such evidence, it should document the efforts to obtain the records, and should request the appellant and her representative to provide a copy of the outstanding evidence to the extent they are able to. 2. Schedule the Veteran for an examination to determine the nature and extent of any currently present hepatitis C. The examiner should review the claims folder in connection with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current hepatitis C is etiologically related to his active military service and, if so, the examiner should specifically identify the in-service risk factor(s). A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Readjudicate the claim for service connection for hepatitis C. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be issued a supplemental statement of the case and afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs