Citation Nr: 1319972 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 08-09 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to an undiagnosed illness, or as due to or aggravated by PTSD. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran was a member of the Tennessee Army National Guard (TNARNG) from June 1966 to December 1995. He had two periods of Federal active duty during that time, from February 1967 to July 1967, and from August 1990 to June 1991. He served in Kuwait in 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Nashville, Tennessee, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The Veteran testified at a November 2009 personal hearing held before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is associated with the claims file. In March 2010, the Veteran submitted private medical evidence which suggested that hypertension was attributable to his service-connected PTSD. The issue has been re-characterized accordingly. These issues were remanded in January 2010, April 2012 and January 2013 Board decisions for additional development. FINDINGS OF FACT 1. Hypertension is not related to service, to include service in the Southwest Asia Theater of Operations; nor is hypertension related to service-connected PTSD. 2. Degenerative disc disease of the lumbar spine is not related to service, to include service in the Southwest Asia Theater of Operations. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as due to an undiagnosed illness or as due to or aggravated by PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304,3.310, 3.317 (2012). 2. The criteria for service connection for degenerative disc disease of the lumbar spine, to include as due to an undiagnosed illness have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. November 2004, August 2005, October 2012 and February 2013 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). Those letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a March 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained as available. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. In October 2012, the RO formally found that service treatment records from the period of active duty in 1990 and 1991 were not available and that further efforts to obtain these records would be futile. The Veteran has been informed of the unavailability of those records and was given the opportunity to submit any records in his possession. In February 2013, the Veteran stated that he had no additional evidence to submit, apart from an attached statement in support of his claim ,and that he wished his claim to be decided. In a May 2013 correspondence from the Tennessee Valley Healthcare System, it was noted that there were no records available to be added to the claims file. The Veteran has not indicated, and the record does not contain evidence that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). These matters were most recently before the Board in January 2013, when the case was remanded to the VA RO via the Appeals Management Center (AMC), in Washington, D.C. to afford the Veteran an additional VA examination. All of the actions previously sought by the Board through its prior development requests have been completed as directed, and the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In accordance with the January 2013 remand, the Veteran had a VA examination in March 2013. The examiner reviewed the Veteran's claims file in its entirety, examined the Veteran thoroughly and provided a cogent rationale for all opinions provided. The Veteran has not argued, and the record does not reflect, that this examination and opinion were inadequate. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). A supplemental statement of the case (SSOC) was issued in February 2013, which continued the previous denial. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). 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. Under legislation specific to Persian Gulf War Veterans, service connection may be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more during a specific presumption period. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants presumptive service-connection. 38 U.S.C.A. § 1117(a)(2) and 38 C.F.R. § 3.317(a)(2)(i). Service connection for a disability due to an undiagnosed illness requires that such disability, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. See 38 C.F.R. § 3.317(a)(1)(ii). There cannot be any affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 C.F.R. § 3.317(c). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be provided under the specific provisions pertaining to Persian Gulf Veterans. VAOPGCPREC 8-98 (Aug. 3, 1998). In addition, there must be objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(a)(1)(b). There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a six-month period of chronicity. 38 C.F.R. § 3.317(a)(2)(3). Compensation shall not be paid if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or events that occurred between the appellant's most recent departure from active duty in the Southwest Theater of Operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the appellant's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(c). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Hypertension The Veteran contends that his hypertension is either secondary to his service, as due to undiagnosed illness, or due to his PTSD. The Veteran's available service treatment records are silent as to hypertension or high blood pressure. In a January 2001 treatment note the Veteran is shown to report that he had been told he had borderline hypertension and that readings at home were in the 143/86 to 149/92 range. The assessment provided by the examining nurse practitioner was possible hypertension. A July 2004 VA medical center treatment note includes an assessment of hypertension. It was noted that elevated blood pressure was any reading greater than 140/90 and that the Veteran's blood pressure was 138/70. In a March 2010 correspondence, the Veteran's private physician, Dr. B.B., stated that the Veteran's hypertension stemmed directly from his posttraumatic stress disorder (PTSD). No rationale was provided. In a March 2013 VA examination, it was noted that the Veteran was initially diagnosed with hypertension in January 2001. The examiner stated that, after reviewing the Veteran's claims file, it was less likely than not that hypertension was incurred in or caused by service. The examiner noted that the Veteran's hypertension was not present in service and that there was no evidence to support that his hypertension was directly related to service. The examiner further noted that the Veteran's hypertension was less likely than not related to his service-connected PTSD. The examiner explained that PTSD was related to an incident in 1990-1991 whereas his blood pressure was not diagnosed until 10-11 years later and that an onset of hypertension related to PTSD would as likely as not be seen prior to his diagnosis (of PTSD) rather than approximately 10 to 11 years after. The examiner noted that the Veteran's blood pressure readings had been mostly stable and that there was no trend in elevation in pressure and, in fact, the Veteran's pressures had improved from 2010 onward. The examiner further stated that he reviewed Dr. B.B.'s letter which related the Veteran's hypertension to his PTSD, and that, based upon the evidence he described, particularly the numerous blood pressure readings from 2001 to present, he did not see a sustained worsening of pressure based upon the Veteran's PTSD nor did the examiner see evidence to conclude that the Veteran's hypertension was as likely as not related to PTSD but that it was more likely than not the Veteran's hypertension was essential hypertension. The evidence of record is completely silent as to any indication that the Veteran's hypertension, a diagnosed condition, is related in any way to an undiagnosed illness or to service itself. The Veteran's contention that his hypertension is related to an undiagnosed illness holds no weight. While the Veteran is competent to report on that which he has personal knowledge, there is no evidence that he has any medical expertise and, therefore, lacks the competence to determine the etiology of his hypertension. Such is a medical question which goes beyond a simple and immediately observable cause-and-effect relationship. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Regarding the issue of whether hypertension is related to service or to the Veteran's PTSD, the record includes the opinion of Dr. B.B. and that of the VA examiner. Significantly, the VA examiner is shown to have reviewed the totality of the record and provided a rationale for his conclusions that hypertension was neither due to service or PTSD. In contrast, Dr. B.B.'s correspondence does not demonstrate any familiarity with the Veteran's medical records as a whole no rationale is provided for his conclusion. Thus, the opinion of the VA examiner is afforded more weight than that of Dr. B.B. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The competent and credible evidence is against a finding that hypertension is related to either the Veteran's service or to his PTSD. The preponderance of the evidence is against the claim for service connection for hypertension; there is no doubt to be resolved; and service connection is not warranted. Degenerative Disc Disease of the Lumbar Spine The Veteran contends that he injured his back during his period of active duty in Kuwait in 1990-91. See September 1991 Application for Compensation. A December 1994 Persian Gulf examination noted low back syndrome. A VA general medical examination in June 2005 diagnosed degenerative disc disease of the low back. In a lay statement received in December 2004, J.S., a soldier who served with the Veteran, stated that he believed the Veteran had injured his back either when a large metal pole fell on their tent or while removing the pole from the tent. A June 2005 x-ray report suggested minimal levoscoliosis and mild multilevel degenerative osteophytosis. A September 2005 treatment note that x-rays demonstrated mild possible degenerative joint disease and that it appeared that the Veteran's depression played a "major role in a lot of his symptoms complexes." In a December 2006 VA examination the VA examiner noted that, during physical examination, if the Veteran was distracted he did not evidence tenderness; but that if he obviously palpated muscles, the Veteran grimaced and flinched. The examiner stated that, while he was not a psychiatrist, he felt that the Veteran may have somatotization disorder with histrionic tendencies to explain all of his numerous complaints with a paucity of physical or objective findings. In a written statement dated in March 2008, the Veteran described straining his back helping another soldier complete a march. An October 2008 X-ray report noted degenerative changes at multiple levels of the lumbar spine. The Veteran was afforded a VA examination in March 2013. The VA examiner noted that the Veteran's claims file was reviewed. During his examination, the Veteran explained that, while serving in Desert Storm packing sand bags he began to experience lumbar spine pain. He stated that he first complained of this pain after discharge at a VA medical center. He stated that he still had back pain which came and went. After reviewing the claims file and examining the Veteran, the VA examiner concluded that the Veteran's degenerative disc disease was less likely than not incurred in or caused by service. The examiner explained that the Veteran was diagnosed with degenerative joint disease in 1967 and that medical records in 1995 and 1996 did not indicate a lumbar condition in the National Guard. The examiner noted that there were some 1994-1996 VA medical center treatment records which indicated complaints of lumbar pain but that there was no single clear cut etiology of the Veteran's lumbar condition and that it was as likely as not related to the Veteran's years of physical labor following service, as well as a possible progression of a condition due to a 2007 motorcycle accident which was significant enough to fracture the left iliac pelvic bone. The Veteran served in the Southwest Asia Theater of Operations. Therefore, he qualifies for consideration for presumptive service connection for disabilities resulting from undiagnosed illness or unexplained chronic multi-symptom illness. If the Veteran's symptoms are not found to be related to an undiagnosed illness, the issue then turns on whether the evidence is at least in equipoise that his spine disability is related to, or was aggravated by, service. The evidence of record does not contain a single medical opinion which relates the Veteran's present spine disability to service. Moreover, there is no competent evidence that relates the Veteran's spine disorder to his service in the Persian Gulf. The Veteran indicates that he has an undiagnosed illness; he is not shown, however, to have any medical expertise. The Veteran is not competent to diagnose himself or determine the etiology of his back symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, medical experts who examined the Veteran suggested that the Veteran had exaggerated his symptoms secondary to psychiatric disorders. Significantly, the Veteran has inconsistently reported that his back problems started at different times as a result of different events. Because of the Veteran's psychiatric disorder, his inconsistent reports of onset, and the exaggerated symptoms he has reported to medical professionals , the Veteran's statements regarding continuity are simply not credible. The only competent medical evidence, the findings of the March 2013 VA examiner, is squarely against a finding of service connection. The examiner attributes the Veteran's diagnosed back disability to his physical labor following service and to a 2007 motorcycle accident. The preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved; and service connection for a lumbar spine disability is not warranted. ORDER Entitlement to service connection for hypertension, to include as due to an undiagnosed illness, or as due to or aggravated by PTSD, is denied. Entitlement to service connection for degenerative disc disease of the lumbar spine, to include as due to an undiagnosed illness, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs