Citation Nr: 1320139 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-40 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for hypertension, to include as secondary to depressive disorder with posttraumatic stress disorder (PTSD) symptoms. ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By a VA Form 9 (Appeal to Board of Veterans' Appeals) dated in October 2009, the Veteran requested a Board hearing. The request for a Board hearing was withdrawn in September 2011. This claim was previously before the Board in August 2012, at which time the Board remanded the issue on the cover page for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT Hypertension was not shown in service or for many years thereafter, and the most probative evidence fails to link the Veteran's current hypertension to service or to the service-connected depressive disorder with PTSD symptoms. CONCLUSION OF LAW The requirements for establishing service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, a January 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The January 2008 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Additional notice was provided in an October 2009 letter. The case was last readjudicated in January 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, private treatment records, and VA examination reports. VA treatment records from Chicago were requested by the RO in July 2010 and in response the VA medical center replied that there were no records available. In August 2010 the RO made a formal finding of unavailability. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining updated VA treatment notes and obtaining a VA examination report addendum. The additional VA treatment records were obtained, and in October 2012 an addendum to the opinion was obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection will also be presumed for certain chronic diseases, including hypertension, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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 is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The service treatment records (STRs) show that at the Veteran's enlistment examination his blood pressure was 116/72, and at his January 1970 discharge examination it was 120/70. The STRs do not show any complaints, treatment or diagnoses related to hypertension. Private treatment records from January 2006 show that the Veteran was prescribed Tenoretic after his blood pressure was measured at 176/110, 150/100 and 168/102. May 2006 treatment records state that the hypertension was well controlled. The Veteran had a VA examination for PTSD in January 2008 at which he was diagnosed with depressive disorder and PTSD symptoms that did not meet the full diagnostic criteria for PTSD. In a September 2009 rating decision, service connection was granted for depressive disorder with PTSD symptoms. August 2008 private treatment records indicate that the Veteran had a history of hypertension that was well controlled. The Veteran had a VA examination in February 2010. He was taking lisinopril, chlorthalidone/atenolol, and aspirin for high blood pressure and simvastatin for his cholesterol. The side effects were a runny nose and itchiness. The Veteran had undergone angioplasty and placement of a coronary stent due to coronary artery disease. He had headaches related to hypertension and needed to take continuous medication to control it. The Veteran's blood pressure at the examination was 140/86, 130/82 and 120/86. He reported that he was not seeing anyone for psychiatric conditions and said that he did not have any mental health or psychiatric conditions that he knew of. Reflexes were normal, and a sensory examination and motor examination were normal. The examiner felt that the Veteran's hypertension was not caused by or a result of the service-connected depressive disorder with PTSD symptoms because the Veteran denied any mental health issues. At March 2010 VA treatment the Veteran reported no side effects from the hypertension medication and that he was compliant with his medication. Blood pressure was controlled and the Veteran was watching the salt in his diet. The February 2010 VA examiner reviewed the record in October 2012 and felt it was less likely than not that the hypertension was caused or aggravated by the depressive disorder with PTSD symptoms. The rationale was that even though the Veteran was diagnosed with depressive disorder with PTSD symptoms, it was not significant enough to cause or aggravate a hypertensive disorder. The lack of severity was evidenced by the Veteran's remark about not having any mental health issues, not having mental health treatment, and not complaining of any mental health symptoms at March 2010 primary care treatment. With regard to service connection for hypertension on a direct basis, the Board reiterates that the Veteran's service treatment records are negative for any complaints, diagnosis, or treatment of hypertension. Blood pressure readings from service were not consistent with a diagnosis of hypertension (140 systolic and 90 diastolic). See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Moreover, there is no medical opinion linking his hypertension to service. In addition, hypertension was not shown to a compensable degree within one year following his discharge from service. Therefore, service connection is not warranted on a direct or presumptive basis. See 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran's active service ended in January 1970 and the post-service treatment records show that he was diagnosed with hypertension in January 2006. With regard to service connection for hypertension on a secondary basis, the Board notes that at no time did any of the Veteran's treating providers find that his hypertension was due to or aggravated by his depressive disorder with PTSD symptoms. However, the February 2010 VA examiner reviewed the claims file, interviewed and examined the Veteran, and provided adequate reasoning and bases for the October 2012 opinion that it was less likely than not that the Veteran's hypertension was caused by or aggravated by his depressive disorder with PTSD symptoms. For these reasons, the February 2010 opinion and October 2012 addendum opinion by the February 2010 VA examiner are afforded great probative value. The Veteran is not shown to have medical training such that he is capable of determining the etiology of hypertension, as such matters require medical expertise to determine. Thus, the Veteran's lay opinion as to the etiology of his hypertension is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). There are no medical opinions of record indicating that there is any relationship between the Veteran's hypertension and his military service or between hypertension and his depressive disorder with PTSD symptoms on a causal or aggravation basis. The record does not show that the Veteran was diagnosed with hypertension until January 2006, which was over 35 years after his active military service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (to the effect that service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). In sum, the Board finds that there is no probative evidence that the Veteran's hypertension is related to service on a direct, presumptive, or secondary basis. Accordingly, service connection for hypertension, to include as secondary to depressive disorder with PTSD symptoms, is not warranted on any basis. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is therefore not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for hypertension, to include as secondary to service connected depressive disorder with PTSD symptoms, is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs