Citation Nr: 1319949	
Decision Date: 06/20/13    Archive Date: 07/02/13

DOCKET NO.  04-38 148	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a cardiovascular disorder, to include hypertension.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Counsel


INTRODUCTION

The Veteran served on active duty from October 1971 to April 1975.  He served in the Louisiana Army National Guard from June 12, 1977 to June 11, 1978 and from December 19, 1984 to May 16, 1986; and then served in the Tennessee Army National Guard from May 17, 1986 to May 16, 1987, with periods of active and inactive duty for training (ADUTRA and INADUTRA).  

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for both hypertension and heart condition.  These disabilities have since been combined, as reflected on the title page.

This case was remanded in June 2007 in order to afford the Veteran a personal hearing.  Thereafter, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in September 2007.  A transcript of the hearing is associated with the claims file.

In January 2008, May 2011, and September 2012, the Board remanded this case for further development.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  These documents were reviewed in conjunction with this decision.


FINDING OF FACT

Cardiovascular disorder, to include hypertension, did not have its clinical onset in service, was not exhibited within the first post service year, and is not otherwise related to active duty.  


CONCLUSION OF LAW

A cardiovascular disorder, to include hypertension, was not incurred in or aggravated by service, and may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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. 2011); 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 the degree of disability and the 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 RO.  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, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In the present case, complete notice was not issued prior to the adverse determination on appeal.  However, fully compliant notice was later issued in October 2006 and February 2007 communications, and the claim was thereafter readjudicated in May 2010.  Accordingly, any timing deficiency has here been appropriately cured.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006).

Next, VA has a duty to assist the Veteran in the development of the claim.  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 appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at a September 2007 video hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c).  His service treatment and personnel records and VA and private records have been associated with the claims file, to the extent available.  As delineated in the Board's January 2008 and May 2011 Remands, VA made repeated efforts to verify all the dates of the Veteran's ADUTRA and INADUTRA in the Tennessee and Louisiana Army National Guard, obtain his Reserve service medical records, and verify his alleged exposure to herbicides.  

In a September 2011 memorandum, the RO described its efforts to verify the Veteran's alleged herbicide exposure, discussed infra, and concluded that further efforts would be futile.  In a November 2011 memorandum, the RO described its efforts to obtain the Veteran's service treatment records from his Tennessee Army National Guard service and determined that further efforts to obtain them would be futile.  The Board agrees.  The Board recognizes that there is a heightened obligation to assist the Veteran in the development of his claims, a heightened obligation to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in such cases.  Russo v. Brown, 9 Vet. App. 46 (1996). 

All reasonably identified and available medical records have been secured.  A review of the Veteran's Virtual VA electronic file reveals VA medical records, dated to June 2012, that were also considered by the Board in the claims on appeal.  

VA also provided a May 2009 VA examination and then sought clarification of that opinion.  See September 2012 Board remand.  In October 2012, the examiner reviewed the objective evidence of record, the Veteran's current complaints, and the May 2009 clinical evaluation.  Thereafter, he offered opinions as to the nature of the claimed disabilities, accompanied by a rationale.  Based on the above, VA has substantially complied with the January 2008, May 2011, and September 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

At the hearing the undersigned identified the issue, sought information as to the onset of the Veteran's disability and its treatment to determine whether all relevant records had been obtained.  Ultimately the claim was remanded for additional records and an examination.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  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).

Analysis

The Veteran seeks service connection for a cardiovascular disorder to include hypertension.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  The term "active military service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty."  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991).  Thus, with respect to the appellant's Army National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing inactive duty training (IDT).  38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304; see also Brooks v. Brown, 5 Vet. App. 484, 487 (1993) (noting that service connection is generally not merited when a disability incurred on IDT results from a disease process).

As an initial matter, the Board notes that the term "hypertension" is defined as diastolic blood pressure that is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, note 1.  Additionally, the criteria for diagnosis of hypertension require confirmation by readings taken two or more times on at least three different days.  Id.

Certain disorders, such as cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if manifested or aggravated within one year of separation from service to a degree of 10 percent or more, provided that the Veteran has served a minimum of ninety days either during a period of war or during peacetime service after December 31, 1946.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  A 10 percent manifestation of hypertension requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  38 C.F.R. § 4.104, Diagnostic Code 7101.  The record does not show hypertension within one-year of the Veteran's separation from active duty service (i.e., prior to April 1976).  Accordingly, there is no basis for a grant of presumptive service connection for hypertension as a chronic disease.

Similarly, ischemic heart disease, including coronary artery disease, is a condition for which service connection can be presumed if the Veteran is found to have been exposed to a herbicide agent, such as Agent Orange, during his military service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. §§ 3.307, 3.309.  Thus, the Board will next consider whether the evidence shows exposure to a herbicide agent.

Exposure to an herbicide agent is presumed for veterans who had active service in the Republic of Vietnam during the Vietnam Era (from January 9, 1962 to May 7, 1975).  38 U.S.C.A. § 1116(f).  In this case, the Veteran's service records do not show service in the Republic of Vietnam.  These records do show that the Veteran left his prior duty assignment on August 22, 1973, and that he served in Thailand from October 12, 1973 to January 31, 1974.  His military occupational specialty (MOS) was aircraft maintenance specialist.  In September 2011, the Appeals Management Center issued a formal finding that it lacked the information necessary to corroborate the Veteran's claim of herbicide exposure.  In his lay statements, the Veteran has alleged that he spent time in Vietnam, specifically in Saigon, immediately prior to arriving in Thailand.  See June 2002 Statement; October 2004 VA Form 9.  The Veteran is competent to provide lay testimony of such a stopover as it is a lay-observable event.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  The question then becomes whether that testimony is credible and, if so, what weight should be assigned to this lay evidence.  See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  

In this case, the Board finds that the Veteran's claim of service in the Republic of Viet Nam is not plausible.  More weight is assigned to the AFHRA archivist's statements that the Veteran's account was not plausible as all units and support personnel had left Vietnam several months prior to the Veteran's reported layover in October 1973.  Indeed, based on the information provided by the archivist, all units and support personnel had left the Republic of Vietnam prior to the Veteran's departure from California in August 1973.  Thus, the weight of the evidence is against finding that the Veteran was physically in the Republic of Vietnam during the Vietnam Era.  Therefore, exposure to herbicides is not presumed.

There is no indication that the Veteran's service at the Royal Thai Air Force Base at Korat, (as an aircraft maintenance specialist) put him near the air base perimeter on a regular basis.  The Veteran's military occupational specialty (MOS) was not in security and no perimeter duty is claimed or shown.  At his hearing, the Veteran also alleged exposure to herbicides through his contact with aircraft that flew over the Republic of Vietnam, delivering and dropping Agent Orange.  See September 2007 hearing transcript, p. 11.  There is nothing in the record showing that planes contaminated with herbicides were routinely landing or being serviced in Korat.  The Board does not find convincing evidence of actual exposure to herbicides in service.

Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, as here, the claims still can be reviewed to determine if service connection can be established on a direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation).

To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability.  See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In this case, the record shows diagnoses of hypertension and ischemic heart disease/coronary artery disease.  See generally, VA Outpatient Treatment Records.  Thus, the current disability requirement has been met.

The second requirement for direct service connection is competent and credible evidence of an in-service occurrence or aggravation of a disease or injury.  Davidson, 581 F.3d 1313.  In this regard, the Veteran's service treatment records do not contain a diagnosis of or treatment for a cardiovascular disorder.  In his February 1975 Report of Medical History, the Veteran indicated that he had pain or pressure in chest and palpitation or pounding heart, stating that his father had a heart attack the previous year and that he was having the same symptoms.  The February 1975 separation examiner found the Veteran's heart to be normal.  An electrocardiogram performed at that time was normal.  A February 1975 internal medicine evaluation found that the Veteran's chest pain was most likely related to esophageal spasm and referred him to a mental health exam due to history of anxiety.  Likewise, the Veteran's active duty service treatment records do not contain a diagnosis of, or reflect treatment or manifestations, such as high blood pressure readings, which are attributable to hypertension.  Additionally, as explained above, the record does not support the Veteran's claim of herbicide exposure.  Thus, an in-service occurrence or aggravation of a disease or injury is not shown during active duty.

The Board has also considered the Veteran's service in the Tennessee Army National Guard and the Louisiana Army National Guard.  In this case, the Veteran has not alleged any injury during his Guard service.  As noted above, service connection is not available when a disability incurred on IDT results from a disease process.  See Brooks, 5 Vet. App. at 487.  His retirement credits record shows "active duty, active duty for training, or full time training duty" from June 14, 1985, to June 28, 1985 (Louisiana), and from May 31, 1986, to June 15, 1986 (Tennessee).  

The record contains evidence of an elevated blood pressure (170/108) at the time of the Veteran's June 1977 Federal Aviation Administration (FAA) airman medical and student pilot certificate examination and, as a result, the Veteran was disqualified.  This is not shown to be during a period of ACDUTRA.  Moreover, this reading was not confirmed by additional readings.  Instead, his Louisiana Army National Guard entrance examination from earlier that month noted a blood pressure reading of 140/80, below the diastolic blood pressure level required for hypertension under VA regulations.  Later records refer to a diagnosis of hypertension in 1986.

The Veteran has reported a diagnosis of hypertension during his ACDUTRA service in 1986.  See October 2002 Notice of Disagreement.  The record does not contain corroborating evidence of this.  Efforts to obtain such evidence from the Tennessee Army National Guard were unsuccessful.  In a April 2002 letter, the Military Department of Tennessee stated that they had no additional records for the Veteran as he had previously withdrawn his complete 201 file.  A request to the Army Guard Records Office resulted in a November 2011 negative response, stating that the requested documentation was not located at that Command of the NPRC.  In November 2011, the Veteran was contacted via telephone for more information regarding his claimed diagnosis of hypertension during ACDUTRA.  At that time, he stated that he went to the sick tent during weekend drill.  He was sent back to the barracks and told to relax.  No medication was prescribed at this time and no record of this visit was made.  The Appeals Management Center (AMC) issued a formal finding of unavailability of these records in November 2011.  

VA sought a medical opinion as to whether a connection exists between the Veteran's current cardiovascular disorder, to include hypertension, and his military service.  The May 2009 VA examiner found that the Veteran's cardiovascular disorder was likely attributable to his diabetes mellitus and hypertension; neither of which have been service connected.  While this examiner found that the June 1977 examination showed that the Veteran had hypertension during his service in the National Guard, this finding ignores the specific requirements of  for "active military service" with regard to National Guard service.  As noted above, this was a FAA examination that the examiner relies on to determine that hypertension was present at that time.  The evidence does not establish that the Veteran was on ACDUTRA at this time.  Moreover, no related injury was reported; therefore this is a disease process.  As such, the record of an elevated blood pressure reading suggesting hypertension taken after the Veteran enlisted with the National Guard, but not during a period of active military service is insufficient to establish service connection.  In an October 2012 addendum opinion, the examiner opined that it was less likely than not that either hypertension or coronary artery disease were related to service, noting that she did not see evidence of either during service.  Thus, the record does not contain a positive medical opinion.  The Veteran has not provided a positive medical nexus opinion and VA has not been able to obtain one.

To the extent that the Veteran himself believes his cardiovascular disorder, to include hypertension, was due to his military service, a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Here, however, the Veteran is not claiming an in-service injury, rather he has alleged either that his cardiovascular disorder is the result of herbicide exposure several years prior or that he was first diagnosed with hypertension during ACDUTRA.  Neither situation is an immediately observable cause-and-effect relationship.  Significant medical research has been conducted to establish a relationship between herbicide exposure and certain disabilities that become manifest several years after that exposure and even medical experts require multiple blood pressure readings to determine the presence of hypertension.  The presence of cardiovascular disease and hypertension is not readily observable by even trained medical providers and requires testing to accurately diagnose.  The Veteran is not shown to be competent to address the diagnosis or etiology of his cardiovascular disease.  In essence, there is no competent nexus evidence establishing a connection between the Veteran's current cardiovascular disorder, to include hypertension, and his military service.

Service connection for may be established by a continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service.  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions, such as hypertension, explicitly recognized as chronic under 38 C.F.R. § 3.309(a)).  However, the evidence does not show continuity of symptomatology dating back to his period of active duty service.  A layperson, such as the Veteran, is competent to report on the onset and continuity of observable symptomatology.  See Layno, 6 Vet. App. at 470.  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  Id; see also Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011)(Lance, J., concurring).  The Board must consider whether there is corroborating evidence or evidence suggesting that lay evidence may be mistaken or untruthful.  Kahana, 24 Vet. App. 439.  

In this case, a preponderance of the evidence shows a history of hypertension dating back to 1986 with one incident of an elevated blood pressure shortly after enlisting in the Louisiana Army National Guard that is contradicted by the Veteran's June 1977 and December 1984 examinations.  In his VA treatment records, the Veteran reported a history of hypertension dating back to 1986.  See e.g., May 2001 VA Outpatient Treatment Records; see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  While the Veteran recalls the onset of pertinent disability during a period of ACDUTRA, there is no support for this in the clinical record and is not a reliable claim.  At the May 2009 VA examination, the Veteran recalled that pertinent disability had its onset in the 1970s.  Hearsay medical evidence, as transmitted by layperson, is of limited probative value.  The connection between what a physician said and layperson's account of what he purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence.  Robinette v. Brown, 8 Vet. App. 69 (1995).   

In conclusion, after reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a cardiovascular disorder, to include hypertension.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Service connection for a cardiovascular disorder, to include hypertension, is denied.




____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs