Citation Nr: 1318594	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  09-20 788	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for hypertension. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel







INTRODUCTION

The Veteran served on active duty from January 1969 to January 1973. 

This appeal before the Board of Veterans' Appeals (Board) is from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.


FINDINGS OF FACT

1. The Veteran served on land in Vietnam during the Vietnam Era, and is presumed to have been exposed to herbicides such as Agent Orange.

2. The preponderance of the evidence shows that the Veteran's hypertension did not manifest during active military service or within one year of discharge, and was not caused or aggravated by exposure to herbicides such as Agent Orange, or by any other disease, injury, or event during active service.


CONCLUSION OF LAW

Hypertension was not incurred in or aggravated by active service, and the criteria for presumptive service connection have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

I. The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that 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.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a statement of the case or supplemental statement of the case) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

A claim of entitlement to service connection consists of five elements: (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements.  See id. at 486; Quartuccio, 16 Vet. App. at 187. 

Here, prior to the initial rating decision in this matter, a July 2008 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining relevant records and other evidence on his behalf.  Therefore, the duty to notify has been satisfied.  See id.

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Here, the Veteran's service treatment records and VA medical records are in the claims file.  Private medical records identified by the Veteran have also been associated with the file.  He has not identified any records that remain outstanding.  Indeed, in a July 2008 response to the VCAA notice letter, the Veteran indicated that he had no additional information or evidence to submit in support of his claim.  

The Veteran did mention in his March 2008 claim that his family doctor, G. Alcorn, M.D., had "verifying records."  However, the Veteran has not authorized VA to request records from Dr. Alcorn's office, but rather stated that he had no additional information or evidence to submit in response to the VCAA notice letter.  Moreover, Dr. Alcorn's treatment records dating from 1999 to November 2007 were requested and associated with the file in connection with a different claim, and show diagnoses of hypertension.  There is no indication that any outstanding records from his office exist or would provide further support for the Veteran's claim.  Therefore, as the Veteran has not authorized VA to obtain any additional outstanding records from Dr. Alcorn's office despite the opportunity to do so via the authorized release forms enclosed with the July 2008 VCAA notice letter, a remand is not warranted to obtain these records.  Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied.  See 38 C.F.R. § 3.159(c).  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a).  In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  

A VA examination has not been provided in connection with this claim, and the Board finds that one is not necessary.  In this regard, as explained below, there is no competent evidence indicating that the Veteran's hypertension may be related to a disease, injury or event during active service, to include Agent Orange exposure.  He does not state and the evidence does not otherwise show that his hypertension manifested during active service or until many years after discharge, and the Secretary of VA has found that an association does not exist between hypertension and herbicide exposure, as discussed below.  Accordingly, a VA examination is not warranted.  See id; see also 38 U.S.C.A. § 5103A(a)(2) (West 2002) (the Secretary is not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).   

In sum, VA's duty to notify and assist under the VCAA has been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been alleged.  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002).  Accordingly, the Board may proceed with appellate review.  

II. Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection.  Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (citing Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Id.

However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b).  See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  

If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Walker, 708 F.3d at 1338-1339.  Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases.  Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease").  A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. at 1338.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits.  Id.  For example, the Federal Circuit held in Walker that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as it found that the claimant's hearing loss was not among the chronic diseases listed in section 3.309(a)).  Id. at 1336-37, 1340. 

Hypertension is defined as a chronic disease in 38 C.F.R. § 3.309(a).  Therefore, the provisions of subsection 3.303(b) for chronic disabilities apply, and service connection for hypertension may be established by evidence of a continuity of symptomatology after service.  See Walker, 708 F.3d at 1338-1339. 

In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for cardiovascular-renal disease, including hypertension, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption may be rebutted if there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

The Veteran argues that his hypertension is related to being exposed to herbicides such as Agent Orange during active service in Vietnam during the Vietnam War.  VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met.  See 38 C.F.R. § 3.309(e).  The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.  38 C.F.R. § 3.307(a)(6). 

A veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning January 9, 1962 and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the veteran was not exposed to any such agent.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(iii). 

The Veteran's service personnel records show that he served in Vietnam during the applicable time frame.  Therefore, VA presumes that he was exposed to herbicides such as Agent Orange while on active duty.  See id.

However, hypertension is not eligible for presumptive service connection based on herbicide exposure.  Specifically, in order to benefit from the presumption of service connection for diseases associated with herbicide exposure, a claimant must have one of the diseases enumerated in section 3.309(e).  Under section 3.309(e), the diseases presumed to be caused by herbicide exposure are as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult- onset diabetes), Hodgkin's disease, ischemic heart disease, 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 

Because hypertension is not included in the diseases listed in 3.309(e), service connection on a presumptive basis for hypertension as a disease associated with herbicide exposure is not warranted. See 38 C.F.R. § 3.307. 

If a disease is not listed in section 3.309(e) and thus not eligible for service connection on a presumptive basis as related to herbicide exposure, service connection may still be established with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). 

The preponderance of the evidence is against a relationship between the Veteran's hypertension and herbicide exposure, as probative evidence shows that an association between herbicide exposure and hypertension has not been found.  Specifically, under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the Secretary of VA (Secretary) has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted.  See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924,47,925 (Aug. 10, 2012) (hereinafter "Update); see also Notice on Health Outcomes Not Associated With Exposure to Certain Herbicide Agents (hereinafter "Notice"), 75 Fed. Reg. 81332, 81333 (December 27, 2010); Notice, 72 Fed. Reg., 32395, 32407 (June 12, 2007).  This determination is based on periodic reports of the National Academy of Sciences (NAS) based on a comprehensive review of scientific and medical literature on potential health effects of exposure to Agent Orange.  See Update, 77 Fed. Reg. at 47,925; see also 72 Fed. Reg. at 32395-96, 32407.  Congress has mandated that NAS determine, to the extent possible, whether there is a statistical association between "suspect diseases" and exposure to herbicide agents.  Update, 77 Fed. Reg. at 47,925.  The comprehensive review and evaluation of the available literature that NAS conducted in conjunction with its report has permitted VA to identify all conditions for which the current body of knowledge supports a finding of an association with herbicide exposure.  Notice, 72 Fed. Reg. at 32407.   In the most recent Update, the Secretary confirmed previous findings that the available evidence does not establish a positive relationship between hypertension and herbicide exposure.  77 Fed. Reg. at 47,927.  

The Secretary's determination that a positive association does not exist between hypertension and Agent Orange exposure does not preclude VA from granting service connection for this condition.  Update, 77 Fed. Reg. at 47924.  However, the Secretary's determination does constitute highly probative evidence weighing against a relationship between hypertension and Agent Orange exposure.  In this regard, NAS is a nationally recognized private and nonprofit organization created by an Act of Congress tasked with providing independent advice on scientific matters to the Federal Government, and its findings are based on ongoing and comprehensive reviews of available scientific research.  With regard to potential health outcomes of Agent Orange exposure, Congress has mandated that NAS determine, to the extent possible: (1) whether there is a statistical association between the suspect diseases and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; (2) the increased risk of disease among individuals exposed to herbicides during service in the Republic of Vietnam during the Vietnam Era; and (3) whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the health outcome.  72 Fed. Reg. at 32395.  NAS has submitted these reports roughly every two years since 1993.  Id. at 32395-6.  The Secretary is charged with ensuring the integrity of these findings.  Id. at 32395.  Specifically, the Secretary must take into consideration whether the results of any particular study are statistically significant, are capable of replication, and withstand peer review. Id.  The Secretary reviews studies that report a positive relative risk and studies that report a negative risk of a particular health outcome. Id.  He then determines whether the weight of evidence supports a finding that there is or is not a positive association between herbicide exposure and the subsequent health outcome. Id.  The comprehensiveness and trustworthiness of this two-tiered review system, underscored by the considerable expertise of NAS, renders NAS's findings and the Secretary's conclusions especially probative. 

In sum, the Secretary's conclusion that an association does not exist between hypertension and Agent Orange exposure, which is based on the findings of NAS, constitutes highly probative evidence against such a relationship, and thus carries a lot of weight in the Board's determination of this issue. 

The Board has considered the Veteran's contention that his hypertension is related to herbicide exposure during active service.  He is competent to testify as to matters within his experience and personal knowledge, such as his symptoms and medical history.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that lay evidence can be competent with respect to both the diagnosis and the etiology of a disability); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge).  However, whether hypertension may be related to herbicide exposure during active service is a determination that is medically and scientifically complex, as indicated by the ongoing studies reflected in the Secretary's Notices regarding the potential health outcomes of Agent Orange exposure.  It is well established in the case law that lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity, as they are not amenable to lay observation.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).

Thus, as a lay person, the Veteran does not have the appropriate medical or scientific expertise to render a competent opinion as to whether his hypertension was caused or aggravated by his presumed herbicide exposure during active service in Vietnam.  See id.  He has not submitted any other evidence or explanation in support of this argument.  Accordingly, his contention is outweighed by the Secretary's Update and Notices discussed above, which constitute probative evidence against a relationship between hypertension and herbicide exposure.  See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence").  

The Veteran does not argue, and the evidence does not show, that his hypertension is otherwise related to active service.  In this regard, the medical community has defined hypertension as high arterial blood pressure with a minimum threshold of 140 mm for systolic blood pressure and 90 mm for diastolic blood pressure.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 801 (28th ed. 1994).  For evaluation purposes, VA defines hypertension as diastolic blood pressure being predominantly 90mm or greater, and "isolated systolic hypertension" as systolic blood pressure being predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104, Diagnosis Code 7101, Note (1) (2012).  The Board will apply whichever definition is more favorable to the Veteran based on the evidence of record. 

The Veteran's service treatment records do not reflect diagnoses of high blood pressure or hypertension, and do not show blood pressure readings meeting the definition of hypertension, either as defined by VA or the medical community according to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY.  Moreover, a July 1970 service examination report and the January 1973 separation examination report show blood pressure readings of 118mm systolic and 72mm diastolic, which indicate that the Veteran's blood pressure was normal during active service.  The Veteran's heart and vascular system were also evaluated as normal at separation.  Thus, the evidence shows that the Veteran's hypertension did not manifest during active service.  

The post-service treatment records show that the earliest documented diagnosis of hypertension was in September 2000.  There is no evidence of an earlier history of hypertension.  Thus, service connection under section 3.303(b) of the regulations based on a chronicity in service or a continuity of symptoms after discharge is not warranted, as the preponderance of the evidence shows that the Veteran's hypertension did not manifest until decades after his separation from service in January 1973.  

A nexus or relationship between the Veteran's hypertension and his period of active service has not otherwise been shown.  Indeed, the long period of time that elapsed between the Veteran's separation from service in January 1973 and the earliest diagnosis of hypertension in September 2000 weighs against such a relationship.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service).  

Accordingly, the second and third Shedden elements are not satisfied, and service connection on a direct basis for hypertension is not warranted.  Shedden, 381 F.3d at 1166-67; see also 38 C.F.R. § 3.303(a).

Because the evidence shows that the Veteran's hypertension did not manifest within one year of service separation, service connection on a presumptive basis for a chronic disability under 38 C.F.R. § 3.307(a)(3) and § 3.309(a) is not warranted. 

In sum, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for hypertension is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


ORDER


Entitlement to service connection for hypertension is denied. 




____________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs