Citation Nr: 1320299 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 08-30 126A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from January 1994 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a May 2011 hearing sitting at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In August 2011, the Board remanded the Veteran's claim for further evidentiary development. The subsequent actions of the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claim has been returned to the Board. FINDINGS OF FACT 1. The Veteran's service treatment records show multiple elevated blood pressure readings; however, hypertension was not diagnosed during the Veteran's active duty. 2. The is no evidence of a diagnosis of hypertension or blood pressure readings meeting the criteria of a 10 percent evaluation of 38 C.F.R. § 4.104, Diagnostic Code 7101 within the initial post-service year. 3. The record reflects that hypertension was initially diagnosed in approximately 2002. 4. The competent and credible evidence of record does not relate the Veteran's hypertension to his military service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2012). A September 2006 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA medical treatment records have been obtained. Private treatment records from Newport Orthopedic Institute and Newport Family Medicine as well as Drs. Stirbl and Montano have been obtained and associated with the record. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The Veteran was provided a fee-based examination through QTC services in December 2009. As will be further discussed below, in the August 2011 remand, the Board concluded that the December 2009 VA examination and opinion were inadequate for the purpose of adjudicating the Veteran's claim. Pursuant to the Board's August 2011 remand, the Veteran was provided another VA examination in examination in December 2011 and an addendum opinion was obtained in July 2012. The December 2011 VA examination report and July 2013 addendum opinion reflect that they are adequate for the purposes of adjudicating the Veteran's claim. Specifically these reports reflect that diagnoses and opinions which are consistent with the other evidence of record were rendered following a physical examination of the Veteran and a review of the complete record. All offered opinions are accompanied by a complete rationale, and when viewed together, adequately address the Veteran's assertions. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the record. 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, 129 S. Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the May 2011 Board hearing, the VLJ noted the elements of the claim that were lacking to substantiate the claims of service connection. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars of the United States. The representative and the VLJ asked questions to ascertain the extent of any in-service injury and to determine whether the Veteran's current disability is related to his military service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Court of Appeals for the Federal Circuit recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is listed in 3.309(a) as a chronic disease, and is presumed service-connected if it manifests to a compensable degree within one year of service. 38 C.F.R. § 3.307(a)(3) (2012). Under Diagnostic Code 7101, hypertensive vascular disease, hypertension, and isolated systolic hypertension warrant a 10 percent evaluation with 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 (2012). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Analysis In the present case, the evidence of record reflects a current diagnosis of hypertension. As such, element (1), evidence of a current diagnosed disability, has been demonstrated. Concerning element (2), evidence of an in-service disease or injury, more than two dozen service treatment records reflect blood pressure readings within normal limits, to include the Veteran's July 1997 service separation examination. However, the record reflects various blood pressure readings during the Veteran's military service that were outside the normal range. Specifically, a July 1994 service treatment record showed blood pressure reading of 148/98 one day, and of 120/86 the next. A later July 1994 record documents only one abnormally high reading, compared to seven normal readings taken over five straight days, and another July 1994 service treatment record notes blood pressure readings over the last two weeks mostly within normal range; the assessment noted that there was "[n]o sustained elevation of blood pressure which would require further evaluation or treatment," but that the Veteran should have his blood pressure checked regularly and decrease caffeine and salt intake. An August 1994 service treatment record showing two readings on the same day of 155/93 and 150/87. To that end, while in an August 1994 record, the Veteran reported having a prior medical history of diet-controlled hypertension, hypertension was not diagnosed at that time or in any service treatment record. Indeed, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that are "capable of lay observation," but laypersons are not generally competent to provide evidence as to more complex medical questions requiring medical expertise. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) to Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) and Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that "a layperson is generally not capable of opining on matters requiring medical knowledge"). Similarly, while the Veteran indicated that he had a history of high or low blood pressure on his July 1997 report of medical history, the examining physician indicated that the Veteran had experienced "one episode" of high blood pressure, with no recurrence. To the extent that the Veteran demonstrated multiple elevated blood pressure readings during his service, element (2) has been demonstrated. As noted above, the Veteran's service treatment records do not show that hypertension, which is noted to be listed as a chronic disease under 38 C.F.R. § 3.309(a), was diagnosed during his service. As such, further discussion concerning chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) is not necessary. Concerning element (3), evidence of a nexus between the Veteran's diagnosed hypertension and his elevated blood pressure readings, the Board notes that the evidence of record is unfavorable to the Veteran's claim. The Veteran was provided a fee-based examination in December 2009, and the examiner opined that, while the Veteran demonstrated elevated blood pressure readings during service, it was less likely as not that his current hypertension was related to these episodes. In providing this opinion, the examiner stated that, despite the in-service evidence showing elevated blood pressure readings, there was no evidence of "sustained elevated blood pressure." However, as noted by the Board in the August 2011 remand, the examiner did not appear to have considered the Veteran's private treatment records from Drs. Stirbl and Montano, which account for the Veteran's treatment for hypertension prior to 2006. Thus, the December 2009 examination and opinion were found to be inadequate, and the Board directed that another examination be conducted and an additional opinion sought. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In response to the Board's August 2011 remand, the AMC requested such an examination and opinion in September 2011; however, the Veteran failed to report to this examination. In October 2011, the Veteran's representative contacted VA and conveyed that the Veteran had recently relocated, and consequently, he did not receive notice of the time and place of the September 2011 VA examination. Because the Veteran showed good cause for his failure to appear for the September 2011 VA examination, another examination and opinion were requested by the AMC in November 2011. After a review of the complete record as well as an interview with and physical examination of the Veteran, the December 2011 VA examiner opined that the Veteran's hypertension, initially manifested in approximately 2002, was not related to his in-service elevated blood pressure readings. In providing this opinion, the examiner fully recounted the medical evidence of record, to include the Veteran's service treatment records showing in-service elevated blood pressure readings and his post-service treatment for and diagnosis of hypertension from Drs. Stirbl and Montano, and stated that the Veteran's service treatment records did not show in-service hypertension, but rather, indicated "labile blood pressure with transient elevations." The examiner further stated that this condition is not unusual for an individual with a genetic predisposition for eventual development of fixed hypertension, such as the Veteran, who has a familial history of hypertension on both sides of his family. In a June 2012 Deferred Rating Decision, a rating specialist determined that the December 2011 opinion did not fully address the medical question posed by the Board in the August 2011 remand, and thus, an addendum was required. After this opinion was requested by the AMC, the Veteran's claims file was transferred back to the December 2011 examiner. After another review of the Veteran's VA claims file, the examiner stated in the July 2012 addendum opinion that the Veteran's in-service labile blood pressure readings were not the same as hypertension. It was explained that "[u]nder stress, blood pressure can transiently rise, particularly in individuals with genetic tendencies as this Veteran has. These [in-service]labile blood pressure readings did not 'cause' his subsequently diagnosed hypertension." The examiner further noted that the physicians who treated the Veteran during his service did not diagnose hypertension or prescribe blood pressure medication, and most of his in-service blood pressure readings, to include those at his separation examination, were normal. In sum, the examiner's December 2011 and July 2012 opinions reflect that the Veteran's hypertension was initially diagnosed four years after his separation from service, and his in-service elevated blood pressure readings were less likely as not related to his current diagnosis of hypertension. Accordingly, element (3), medical nexus, has not been demonstrated. Further, there is no evidence of continuity of symptomatology concerning the Veteran's hypertension. As noted by the examiner who conducted the December 2011 examination and offered the July 2012 addendum opinion, the evidence of record does not support that the Veteran consistently experienced symptomatology attributable to hypertension between his separation from service and the initial diagnosis in 2002; a period of more than four years. Additionally, the evidence of record does not indicate that the Veteran demonstrated blood pressure readings which meet the criteria of a 10 percent evaluation under 38 C.F.R. § 4.104, Diagnostic Code 7101, within the initial post-service year. As such, service connection cannot be granted under 38 C.F.R. § 3.307(a)(3) (2012). Also, the Veteran's assertions are not competent evidence of a relationship between his currently diagnosed hypertension and his military service. While the Veteran is competent to testify as to experiencing elevated blood pressure readings, which are capable of lay report and observation, he is not competent to render a medical diagnosis, or to opine as to whether his currently diagnosed hypertension is related to service or in-service elevated blood pressure readings. See Barr, 21 Vet. App. at 307 (holding that lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concluding that certain disabilities are not conditions capable of lay diagnosis). Based on the nexus evidence of record, recounted above, the criteria for service connection for hypertension are not met, as the preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs