Citation Nr: 1320662	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  09-39 690	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for heart disease to include as secondary to service-connected essential hypertension. 

2.  Entitlement to a compensable rating for essential hypertension.

REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs

ATTORNEY FOR THE BOARD

A. Hinton, Counsel








INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1962 to July 1964.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2008 of a Department of Veterans Affairs (VA) Regional Office (RO).

In March 2012, the Veteran did not appear at a hearing before the Board.  In the absence of a timely request for postponement, the request for a hearing before the Board is deemed withdrawn.  38 C.F.R. § 20.704(d).

In June 2012, the Board remanded the case for further development.  As the development has been completed, no further action to ensure compliance the Board's remand is needed.  Stegall v. West, 11 Vet. App. 268, 271 (1998). 

In the remainder of the decision, when there is reference to heart disease, the term also includes congestive heart failure, paroxysmal atrial fibrillation, and coronary artery disease. 


FINDINGS OF FACT

1.  The current heart disease, including congestive heart failure, paroxysmal atrial fibrillation, and coronary artery disease, was not affirmatively shown to have had onset in service; heart disease was not manifested to a compensable degree within one year from the date of separation from service; heart disease, first diagnosed after service beyond the one-year presumptive period for heart disease as a chronic disease, is unrelated to an injury, disease, or event in service; and heart disease is not caused by or permanently made worse by service-connected essential hypertension. 


2.  During the period of the appeal, hypertension was manifested by diastolic pressure that was predominantly below 100 and by systolic pressure predominantly below 160.


CONCLUSIONS OF LAW

1.  The criteria for service connection for heart disease, including congestive heart failure, paroxysmal atrial fibrillation, and coronary artery disease, have not been met.  38 U.S.C.A. §§ 1131, 1137, 5107(b) West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). 

2.  The criteria for a compensable rating for essential hypertension have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101 (2012). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  




Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre-adjudication VCAA notice by letter in September 2008, which included the type of evidence needed to substantiate a claim of service connection for heart disease and for a higher rating for essential hypertension. 

The Veteran was notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable.






As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004) (pre-adjudication VCAA notice); Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (a worsening or increase in severity of the disability and the effect that worsening has on employment).  

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained service treatment records and VA and private medical records, and records of the Social Security Administration. 

The Veteran was afforded a VA examination in October 2008.  Because the VA examiner did not specifically address the question of secondary service connection and as the evidence of record was insufficient to decide the claim on a secondary basis, the Board in June 2012 remanded the claim for a new examination.  

The Board also remanded the claim for increase for hypertension, because the Veteran was on several cardiac medications, but the VA examiner did not address whether any of the medications were for the control of hypertension.  

After notice of the examination was sent to the Veteran's address of record, he did not report for the examination and the Veteran has not shown good cause for not reporting.  While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence.  Wood v. Derwinski, 1 Vet. App. 190   (1991).  


As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Facts

The service treatment records show that on enlistment examination the Veteran denied a history of high blood pressure and heart trouble.  The heart and vascular system were evaluated as normal.  

The remainder of the service treatment records contain no complaint, finding, history, treatment, or diagnosis of heart disease.  There was no examination at discharge.

After service in September 1964 on VA examination the Veteran complained of high blood pressure.  The VA examiner noted a history of intermittent high blood pressure for ten months, but the Veteran was not on medication.  The pertinent findings were blood pressure readings of 150/90, 178/92, and 168/88.  The diagnosis was essential hypertension, which was asymptomatic.   

Private medical records from April 1972 to February 1991 show that hypertension was under good control with medication.  In September 2002, congestive heart failure was diagnosed and was atrial fibrillation.

Between 2002 and 2004, private treatment records show that the diastolic blood pressure readings ranged from 58 to 82 and the systolic blood pressure readings ranged from 112 to 146.  




Private treatment records show that in April 2004 it was noted that the Veteran had smoked one to three packs of cigarettes a day for 15 years and that he had not smoked for more than 15 years.  The Veteran was limited in terms of physical exercise and activities, because of his weight.  The blood pressure reading was 138/74.  The assessment, in part, included paroxysmal atrial fibrillation and hypertension.  A private physician stated that the Veteran's major health problem was the Veteran's weight.

VA records in May 2004 included assessments congestive heart failure, paroxysmal atrial fibrillation, and hypertension.

In August 2007, the Veteran was hospitalized for acute coronary syndrome.  The risk factors were the Veteran's age, sex, weight, hyperlipidemia, remote smoking, and hypertension.  Medical history included congestive heart failure, paroxysmal atrial fibrillation, and hypertension.  It was noted that hypertension was under good control.  The diagnosis was coronary artery disease.

Private medical records in May 2008 document in part assessments of coronary artery disease, paroxysmal atrial fibrillation, and hypertension under excellent control.

VA records in September 2008 list as health problems congestive heart failure, paroxysmal atrial fibrillation, coronary artery disease, seizure disorder, hypoxemia, sleep apnea, morbid obesity, and hypertension.  

On VA examination in October 2008, the blood pressure readings were 158/80, 156/78, and 156/78.  The diagnoses were coronary artery disease with two angioplasties and three stents, congestive heart failure requiring supplemental oxygen 24/7, essential hypertension, atrial fibrillation, hyperlipidemia, morbid obesity, a history of heavy tobaccoism, and chronic obstructive pulmonary disease.  

VA records in December 2008 show that hypertension was under excellent control.  




Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) does not apply.

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran.  38 U.S.C.A. § 5107(b).





Service Connection for Heart Disease to Include as Secondary to Service-Connected Essential Hypertension

Principles of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1131. 

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1131 implemented in 38 C.F.R. § 3.303.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 

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."  




Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including coronary artery disease, if manifest to a compensable degree within the year after active service.  38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).

Service connection may be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a).

Analysis

The Veteran does not assert and the evidence does not show that heart disease was affirmatively shown to have had onset in service and service connection under 38 C.F.R. § 3.303(a) is not established. 

Heart disease is recognized as "chronic" disability under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b), pertaining to chronicity and continuity of symptomatology, need to be addressed, but as heart disease was not noted in service, and as a notation of heart disease is a prerequisite for the application of chronicity and continuity of symptomatology, service connection on the theory of chronicity and continuity of symptomatology does not apply.  



See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection, creating a presumption of service connection for a chronic disease manifesting during service and then again at any later date, is available only for a chronic disease enumerated in 38 C.F.R. § 3.309(a), the only regulation listing named chronic diseases.).

The Veteran does assert that his current heart disease was caused by or aggravated by service-connected hypertension.  The Veteran is competent to describe cardiac symptoms that are capable of lay observation, such as shortness of breath, chest pain, fatigue, or swelling.  See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses).

And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran as a lay person is also competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

The questions is whether the Veteran as layperson is competent to diagnose the heart disease or to offer an opinion on a causal relationship between the present heart disease and service-connected hypertension, that is, the "nexus" requirement for entitlement to service connection.  





Whether the current heart disease was present in service, or whether the disability was caused by an injury or event in service, or whether the current heart disease is proximately due to, the result of, or was increased in severity due to service-connected hypertension, are not questions that can be competently answered by the Veteran as a lay person based on mere personal observation.  This is because the disability falls outside the realm of common knowledge of a lay person, that is, this question is not capable of lay observation without specialized education, training, or experience.  And no factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to diagnose or to  render an opinion on the cause or aggravation of heart disease. 

If as here, there is a question of the diagnosis, which is not capable of lay observation, including by case law, then to the extent the Veteran's lay testimony is offered as proof of the presence of the claimed disability or on causation, the Veteran's lay testimony is not competent evidence and the Veteran's lay testimony is not admissible as evidence.  Explicitly, the Veteran's lay testimony is not to be considered as competent evidence that the claimed heart disease was present in service or was caused by any incident in service, or was caused or aggravated by service-connected hypertension. 

Although Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional.  Jandreau, at 1377.  No medical professional has diagnosed the current heart disease before 2002, 40 years after service separation in 1964, and no medical professional has provided an opinion linking the Veteran's heart disease to service-connected essential hypertension.  

Further, because a separate cardiovascular disease other than hypertension is not shown within one year of discharge from service, presumptive service connection for heart disease as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309 does not apply.  



As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to a postservice diagnosis, applying 38 C.F.R. § 3.303(d) and medial causation, the Board looks to the medical evidence.  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159.

The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008).

The record shows that the Veteran has several risk factors for heart disease, including service-connected hypertension.   In April 2004, the Veteran's treating cardiologist expressed the opinion that the Veteran's biggest health problem was obesity and that this contributed to all of the other health conditions.  

On VA examination in October 2008, the VA examiner stated he was unable to give an opinion on secondary service connection.  In June 2012 the Board directed that the Veteran be afforded another VA examination in order to obtain an opinion as to the likelihood that the Veteran's current heart disease was caused by or aggravated by the service-connected essential hypertension.  The Veteran failed to report for the scheduled examination.  When the Veteran was contacted about the missed examination, the Veteran stated he would contact VA later but he did not do so.

Without good cause the Veteran failed to report for an examination that was necessary to obtain evidence to decide the claim.  




On the basis of the available medical evidence, the preponderance of the evidence is against the claim under the applicable theories of service connection, applying 38 C.F.R. § 3.303(a), (b), and (d) and 38 C.F.R. § 3.307, § 3.309, and § 3.310 and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

Rating Essential Hypertension 

General Rating Policy 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate Diagnostic Codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).



Analysis

The Veteran's hypertension is currently rated zero percent under 38 C.F.R. § 4.104, Diagnostic Code 7101.  Under Diagnostic Code 7101, the criteria for a compensable or 10 percent rating are diastolic pressure predominantly 100 (mmHg (millimeters of mercury)) or more; or systolic pressure predominantly 160 or more; or, a history of diastolic pressure of predominantly 100 controlled by continuous medication. 

After a review of the private and VA medical records and the VA examination in 2008, the blood pressure readings do not more nearly approximate or equate to diastolic pressure predominantly 100 or more or systolic predominantly 160 or more or is there a history of diastolic pressure of predominantly 100 controlled by continuous medication, the criteria for a compensable rating under Diagnostic Code 7101. 

For the above reasons, the preponderance of the evidence is against the claim for a rating higher than zero percent at any time during the appeal, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b). 

Extraschedular Consideration

Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, it is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. 

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Comparing the Veteran's disability level and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule under Diagnostic Code of 7101, and the assigned schedule rating is adequate and referral for an extraschedular rating is not required. 

Total Disability Rating for Compensation based on Individual Unemployability

The Veteran was granted disability benefits by the Social Security Administration for atrial fibrillation and obesity, beginning January 2004.  During the appeal period in a rating decision in November 2008, the RO denied the claim for a total disability rating for compensation based on individual unemployability and the Veteran did not appeal the adverse determination.  Since then the record does not reasonably raise the claim on the basis of noncompensable rating for hypertension, the only service-connected disability. 

ORDER

Service connection for heart disease, including congestive heart failure, paroxysmal atrial fibrillation, and coronary artery disease, to include as secondary to service-connected essential hypertension is denied.

A compensable disability rating for essential hypertension is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs