Citation Nr: 1320502	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  08-33 276	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas


THE ISSUE

Entitlement to service connection for hypertension.


REPRESENTATION

Appellant (the Veteran) is represented by: National Association of County Veterans  Service Officers


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from July 1961 to July 1991.  The Veteran served in Vietnam and was awarded the combat action ribbon.  

This appeal comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the RO in San Diego, California.  The Veteran subsequently relocated and original jurisdiction over the claims file now resides with the RO in Waco, Texas.

In addition to this issue, the Veteran also appealed the RO's denial of service connection for posttraumatic stress disorder (PTSD), bilateral hearing loss, a right ankle disability, and coronary artery disease.  While the appeal was pending, the RO granted service connection for PTSD and for a right ankle disability in May 2009, thus resolving the appeal as to those issues.  The Veteran then initiated appeals as to the initial ratings assigned in the May 2009 rating decision for PTSD and the right ankle disability; however, he did not perfect either appeal within the time period provided.  In an April 2011 rating decision, the RO granted service connection for coronary artery disease, thus resolving that appeal.  The Veteran separately appealed a denial of service connection for tinnitus.  In a May 2011 rating decision, the RO granted service connection for hearing loss in the right ear and tinnitus, resolving the appeals as to those issues.  In a December 2012 rating decision, the RO also granted service connection for left ear hearing loss, resolving the appeal as to that issue.  

The Veteran testified at a hearing conducted by RO personnel in March 2009.  Although the Veteran requested a Board hearing to be conducted at the RO, and such hearing was scheduled in April 2013, the Veteran did not report for the hearing.  To the Board's knowledge, the Veteran has offered no explanation as to why he was unable to appear for the hearing, and he has since made no request for another hearing.  Accordingly, the Board will proceed to a decision on this appeal as though the hearing request had been withdrawn.  See 38 C.F.R. § 20.704(d) (2012) (failure to appear for a scheduled hearing treated as withdrawal of request).  

In reviewing this appeal, the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.  

FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the appeal has been accomplished.

2.  Hypertension is among the diseases for which the presumption of service connection for certain chronic diseases must be considered, as well as the provisions regarding chronicity in service and continuity of symptomatology after service.  

3.  Symptoms of hypertension were not chronic in service.  

4.  Hypertension did not become manifest to a degree of 10 percent or more within one year of service separation. 

5.  Symptoms of hypertension have not been continuous since service separation.

6.  Hypertension is not etiologically related to service or to any service-connected disability.

7.  Hypertension was not aggravated by any service-connected disability.  


CONCLUSION OF LAW

Hypertension was not incurred in service and is not presumed to have been incurred in service; hypertension is not proximately due to or a result of any service-connected disability and was not permanently worsened beyond its natural progress by any service-connected disability.  38 U.S.C.A. §§ 337, 1101, 1110, 1112, 1113, 1131, 1153, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.310 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran is seeking service connection for hypertension.  He contends that hypertension began in service, and alternatively, that it was caused or aggravated by his service-connected diabetes mellitus or by his service-connected PTSD.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The CAVC has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 

Certain specific conditions are considered chronic diseases under VA Law.  These include hypertension.  38 C.F.R. § 3.309(a).  Where hypertension is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b).

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

Where a veteran served 90 days or more during a period of war or after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such service, it shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

In order for hypertension to have manifested to a compensable degree, the evidence must show diastolic pressure of predominantly 100 or more, or; systolic pressure of 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.  See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).

Except as otherwise provided by law, a VA claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary of VA.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that symptoms of hypertension were not chronic in service and were not manifest to a compensable degree within a year of service separation; symptoms of hypertension have not been continuous since service separation; hypertension is not etiologically related to service or to any service-connected disability; and hypertension was not aggravated by any service-connected disability.  

Service treatment records reveal the following blood pressure readings:

Date
Systolic/
Diastolic
Date
Systolic/
Diastolic
Dec 71
136/
74
Aug 83
120/
72
Dec 75
124/
72
Nov 83
128/
78
Apr 79
120/
72
Nov 84
110/
68
Mar 80
122/
80
Dec 84
120/
80
Jul 80
110/
74
Jan 85
140/
100
Sep 81
112/
80
Jun 85
108/
68
Dec 81
110/
80
Jun 86
128/
80
Dec 81
110/
70
Feb 87
130/
84
Dec 81
121/
70
Feb 87
114/
80
Dec 81
122/
70
Jul 87
138/
80
Nov 82
108/
68
Jun 88
116/
60
Dec 82
110/
70
Jun 88
108/
72

When the Veteran was examined in December 1971, December 1975, April 1979, September 1981, November 1982, October 1983, November 1984, June 1985, June 1986, February 1987, and June 1988, the Veteran's heart and vascular system were found to be clinically normal, providing evidence against this claim. 

The Veteran completed reports of medical history in December 1975, April 1979, March 1980, September 1981, June 1986, June 1988, and at separation in July 1991, and reported no history of high or low blood pressure.  A May 1988 dental health questionnaire also reveals no history of hypertension.  

Thus, to the extent that symptoms of hypertension were present in service, the evidence demonstrates that they were not chronic in service.  In so finding, the Board notes that none of the systolic readings in service meets the definition of hypertension.  While there is a single diastolic reading of 100 in January 1985, the determination as to chronic symptoms relates to the predominant reading.  A single reading out of 25 otherwise normal readings does not represent the predominant reading.  

After service, there is no evidence of hypertension until the initial diagnosis in 2004.  The Veteran was treated in June 2004 for complaints of chest discomfort with exertion for the previous 2 weeks.  He denied any previous history of chest pain.  The Veteran was found to have coronary artery disease and underwent bypass surgery.  A follow-up report in August 2004 includes the initial diagnosis of hypertension, described as an idiopathic hypertension, not a secondary cause.  The initial diagnosis of diabetes mellitus is in January 2006. 

There is no recorded manifestation of hypertension to a compensable degree within a year of service separation.  The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)).  However, the Veteran has not described symptoms of hypertension between service separation and the initial diagnosis.  The Veteran may be competent to measure his own blood pressure, or to relate blood pressure readings described to him by medical providers; however, he has not done so here.  Thus, the weight of the evidence demonstrates that hypertension was not manifest to a compensable degree within a year of service separation and symptoms of hypertension have not been continuous since service separation.  

The Board's finding that hypertension began after service is generally consistent with the Veteran's assertions.  For the most part, he has pursued a claim based on a secondary service connection etiology for hypertension.  However, the Board acknowledges that on his March 2006 claim form, the Veteran listed the date of onset of hypertension as 1991.  For the reasons set out above, the Board finds that the onset of hypertension was not in 1991, but was sometime after service.  Nevertheless, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Regarding the etiology of hypertension, the Veteran was afforded a VA examination in October 2006.  The examiner opined that the Veteran's hypertension was not secondary to diabetes mellitus.  The rationale was that the onset of hypertension was prior to the onset of diabetes mellitus.  

The RO attempted to schedule the Veteran for another VA examination in December 2011; however, while the Veteran was notified of the time and place of the examination, he failed to appear for it.  The RO then requested a VA opinion based on a review of the claims file.  A May 2012 opinion of a VA clinician was that the Veteran's hypertension is less likely than not secondary to or aggravated by the service-connected PTSD or diabetes mellitus.  Regarding PTSD, she reasoned that there are many correlations and associations but no definitive link between stress and the development or hypertension.  According to the clinician, essential hypertension has not been directly related to anxiety or neurosis.  While she stated that it is well known that stress transiently elevates blood pressure in all individuals (fight or flight response), this is a normal response to catecholamine release, and such temporary elevation does not aggravate or cause the underlying condition of hypertension.  

The VA clinician also opined that the Veteran's hypertension was less likely than not aggravated beyond its natural progression by service connected diabetes mellitus.  The rationale was that there is no evidence that the hypertension was permanently worsened beyond its natural progression as the blood pressure readings remained within the same stable range.  The VA clinician reviewed 35 blood pressure readings documented in the data between January 2006 and March 2012.  She found that the average of the blood pressure readings was 128/68, and the last 3 readings were 145/67, 147/68, and 134/65.  

The VA clinician also found that there is no evidence that the type II diabetes has caused or led to the presence of microalbumin or renal disease which would aggravate the blood pressure and there is no evidence of renal disease in this Veteran.  According to the clinician, it is a known medical fact confirmed in peer reviewed medical journals that for diabetes to aggravate hypertension there must be renal involvement.  Here, she found no evidence of renal disease.  The clinician reviewed hemoglobin A1C readings between October 2006 and March 2012.  She noted that the Veteran was diagnosed with hypertension in 2004, 2 years prior to the diagnosis of type II diabetes.  The Veteran was treated with atenolol 25mg daily for his hypertension in 2004.  In 2006, at the time of diagnosis for type II diabetes, he was started on fosinopril.  In January of 2007, the fosinopril dose was increased to 40mg daily.  The clinician also noted that the Veteran has been routinely screened for the presence of microalbuminuria, and this has remained negative.  The last evaluation was March of 2012, with microalbumin of 8.3, in the normal range.  

The Board finds that the opinion of the May 2012 VA clinician is persuasive evidence regarding the etiology of the Veteran's hypertension.  The opinion addresses the asserted theories of etiology as well as the pertinent facts, and it is supported by reference to those facts and to generally-accepted medical principals.  

There is no medical evidence that purports to relate the incurrence of hypertension or the aggravation of hypertension to the Veteran's diabetes mellitus or to his PTSD.  There is also no medical opinion that purports to relate hypertension directly to service.  In addition to the opinion on secondary service connection, the May 2012 VA clinician also opined that hypertension was less likely than not incurred in or caused by an in-service injury, event, or illness.  While the Veteran believes that his hypertension is related to his diabetes mellitus, to his PTSD, or directly to service, and while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), establishing the etiology of hypertension falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

The Veteran is competent to relate a medical opinion of a competent medical professional regarding the etiology of hypertension; however, he has not done so, and he testified at the RO hearing that he has never been told by a doctor that his diabetes mellitus contributed to his hypertension.  Thus the only evidence tending to link the Veteran's hypertension to service or to a service-connected disability, is not competent for the purpose intended.  The Board finds that the weight of the evidence regarding nexus demonstrates that the Veteran's hypertension is not related to service and is not related to any service-connected disability.  

In summation of the Board's findings, symptoms of hypertension were not chronic in service and were not manifest to a compensable degree within a year of service separation; symptoms of hypertension have not been continuous since service separation; hypertension is not etiologically related to service or to any service-connected disability; and hypertension was not aggravated by any service-connected disability.  As such, the Board concludes that service connection for hypertension is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  VA must notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

In this case, the Veteran submitted his claim for service connection for hypertension in March 2006.  He was sent a letter in May 2006, and another letter in July 2006, which advised him of the information and evidence necessary to substantiate his claim.  Those letters also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Since the letters were sent to the Veteran prior to the initial adjudication of the claim in November 2006, there exists no error in the timing of this notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In short, VA has complied with its duty to notify the Veteran in this case.

VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions and hearing testimony.

In addition, the Veteran was afforded a VA examination in October 2006, and a VA opinion was obtained in May 2012 to address the etiology of hypertension.  The examination and the opinion are adequate.  The examination was thorough included pertinent findings, and the May 2012 opinion was based on a review of and knowledge of the pertinent evidence.  The May 2012 opinion is also accompanied by a rationale that is consistent with the record.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).

The Board acknowledges some discrepancies on the May 2012 VA opinion form, which is essentially a combination of a pre-printed form with check-boxes that are marked by the clinician, and comment sections in which the clinician records findings in his or her own words.  In this case, the clinician checked the box indicating that the Veteran's "claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness."  An opinion on aggravation of a pre-service condition was never requested and this is an apparent oversight on the part of the clinician.  As the clinician provided her actual opinion in writing, and as that opinion addressed the details of this case, and did not suppose a pre-service condition, the Board finds that the context of the opinion is clear and no additional clarification is necessary.  

As noted above, the Veteran failed to report for a scheduled VA examination in December 2011.  Good cause for the failure has not been provided by the Veteran.  When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination, and when the issues involves an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(a) (2012).  The RO has in fact gone beyond its duty under 38 C.F.R. § 3.655 and has obtained a medical opinion based on a review of the claims file.  The Board finds that there is no further duty regarding providing a VA examination in this case.  

The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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).

ORDER

Service connection for hypertension is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs