Citation Nr: 1319205 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 08-26 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for rheumatoid arthritis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to October 1970 and from August 1980 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran requested a hearing before a Veterans Law Judge at the Columbia Regional Office on his VA Form 9, filed in August 2008. He was subsequently scheduled for, and then cancelled, two hearings. See Report of Contact forms, dated January 2011 and July 2012. In his most recent communication in July 2012, the Veteran specifically requested that his hearing be canceled and that his file be forwarded to the Board for a decision. Therefore, the Board finds that the Veteran's request for a hearing before a Veterans Law Judge has been withdrawn. 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals additional VA treatment notes, dated July 2011 through October 2011, which post-date the June 2009 supplemental statement of the case issued by the agency of original jurisdiction (AOJ). However, these records, which show that the Veteran has a diagnosis of hypertension and takes prescription medication, are duplicative of records already considered by the AOJ; accordingly, the Board may proceed to adjudicate the Veteran's claims without obtaining a waiver for that evidence or remanding for the issuance of a supplemental statement of the case. 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. 2. Rheumatoid arthritis is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1116, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Rheumatoid arthritis was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1116, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Here, the Veteran was sent a letter in August 2005, which was prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate his service connection claims and of the division of responsibilities between VA and a claimant in developing such evidence. The Board observes that the Veteran was not provided notice of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. However, the Board finds no prejudice in proceeding with a decision regarding the Veteran's service connection claims. In this regard, as the Board concludes herein that the preponderance of the evidence is against the Veteran's claims, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot. Therefore, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Accordingly, VA has satisfied its duty to notify under the VCAA. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment and personnel records, as well as post-service reports of VA and private treatment. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In this case, the Veteran has not been afforded VA examinations for the issues on appeal. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. 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 (2006). In this case, service treatment records are silent as to any complaints or treatment for hypertension or rheumatoid arthritis. Moreover, the Veteran has not articulated any in-service incident that he alleges resulted in his claimed disorders. Furthermore, the record contains no competent evidence suggesting a causal relationship between the claimed disabilities and active service. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). For all of these reasons, the evidence does not indicate that the claimed disabilities may be related to active service such as to require an examination, even under the low threshold of McLendon. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hypertension and arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes at the outset that, while the Veteran seeks service connection for hypertension and rheumatoid arthritis, he has not asserted that he suffered from these conditions during service, within one year of separation from service, or that he has had continuity of symptomatology of these disabilities since service. The Veteran also has not asserted any theories as to why he believes his claimed disabilities are related to service. Medical evidence shows that the Veteran has been diagnosed with hypertension and takes Lisinopril for such, and that he also carries a diagnosis of rheumatoid arthritis; accordingly, the Board accepts that he has a current diagnosis of both claimed disabilities. However, there is no competent evidence of record suggesting a link between the claimed disabilities and service, or that either disability manifested to a compensable degree within one year of service separation. In this regard, on the Veteran's January 1967 service entrance examination, he denied a history of hypertension, arthritis and rheumatism. No complaints of hypertension or rheumatoid arthritis were noted at the Veteran's October 1970 separation examination. He again denied a history of hypertension, arthritis and rheumatism at his May 1980 entrance examination, completed for his second period of service. All other service treatment records are likewise silent for complaints relating to hypertension or rheumatoid arthritis. In this regard, while the Veteran's blood pressure readings ranged from low to slightly elevated, his last blood pressure reading documented in service was 92/70 in November 1984. Per the record, the Veteran was first diagnosed with hypertension in December 2003 and rheumatoid arthritis in June 2004, such that he is not entitled to service connection for either disability on a presumptive basis. Moreover, as indicated previously, the Veteran has not alleged a continuity of symptomatology of either disease since service. Subsequent treatment records report ongoing diagnoses of hypertension and rheumatoid arthritis; however, no treating clinician has ever opined as to the etiology of either disability. As stated above, the Veteran also has not posited any theories as to why he believes he is entitled to service connection for hypertension or rheumatoid arthritis. Given the lack of evidence in this case, there are no grounds to award service connection, or even request a medical examination, for either claimed disability. See Bardwell, supra; Waters, supra. To the extent that the Veteran's request for service connection for hypertension and rheumatoid arthritis can be construed as an assertion that his claimed disabilities are related to service, he is not competent make this conclusion as medical expertise is required. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Specifically, as hypertension and rheumatoid arthritis are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Rather, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, for the reasons outlined above, the Board finds that the preponderance of evidence is against the Veteran's claims for hypertension and rheumatoid arthritis. As the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for hypertension is denied. Service connection for rheumatoid arthritis is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs