Citation Nr: 1320673 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 97-26 939A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to chronic fatigue syndrome and major depressive disorder. ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1985 to August 1985, from June 1986 to August 1986, and from October 1986 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This claim was previously before the Board in October 2010 and June 2012, at which time the Board remanded it for additional development. The June 2012 remand instructions were for the VA physician who wrote a September 2011 statement to be asked to provide greater specificity. Instead, the file was returned to a VA physician who provided an opinion in August 2011. The Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Since the August 2011 VA physician considered the September 2011 statement when providing his opinion, the Board finds there was substantial compliance and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT The Veteran did not have hypertension in service or until many years after service, and the most probative evidence is against the conclusion that any current hypertension is related to service or to any incident therein or was caused or aggravated by chronic fatigue syndrome and major depressive disorder. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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. 38 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claims, a letter dated in June 2006 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records, VA treatment records, Social Security Administration, and Postal Service records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination in August 2007 and March 2009 in conjunction with his claim. Additional opinions were obtained in August 2011 and June 2012, the reports of which have been associated with the claims file. The physician who wrote the August 2011 and June 2012 opinions provided well-reasoned rationales. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Service Connection 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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). The record does not show that the Veteran's hypertension was manifest within a year of active service, as discussed below. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or 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. 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl, 21 Vet. App. at 124 ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The service treatment records do not show any complaints, treatment, or diagnoses related to hypertension. Post-service VA treatment records from July 2003 state that the Veteran did not have hypertension, and his blood pressure was 111/77. At April 2006 VA treatment, the Veteran's blood pressure was 139/89. The Veteran had a VA examination in August 2007, and the examiner noted that the Veteran had been diagnosed with hypertension in 2005. The Veteran had not had any prior known episodes of hypertension. He was treated with medication, and home blood pressure readings had averaged 140/80 to 90. The examiner felt that the VA treatment records showed intermittent hypertensive readings. At the examination blood pressure was 150/100 supine and sitting and 156/100 standing. The Veteran had taken his medication that morning, and there was no evidence of complications. The examiner felt it was less likely than not that hypertension was secondary to service-connected disabilities because hypertension was not a feature of chronic fatigue syndrome or depression. It was more likely that the Veteran had essential hypertension, which was becoming manifest as he got older. In an examination report addendum, the examiner wrote that in view of that neither chronic fatigue syndrome or depression are associated with the risk of hypertension, it was unlikely that the Veteran's hypertension was permanently worsened by either of those disabilities. In August 2007, the Veteran submitted treatise and other information from the Internet stating that depression and severe anxiety can increase a person's risks for developing hypertension and that anti-depression drugs and acetaminophen can be related to hypertension. The Veteran had a VA examination for chronic fatigue syndrome in March 2009. Blood pressure had been reasonably well controlled with modest doses of medication and recent blood pressure was 135/91. The examiner felt that it was less likely than not that the Veteran's hypertension was caused by or affected by the Veteran's other medical problems, including depression, chronic fatigue syndrome, hiatal hernia, hemorrhoids, or hematuria. August 2011 VA treatment records, indicate that the Veteran was compliant with his blood pressure medication and that at-home readings were in the 140s/90s. In August 2011, a VA physician reviewed the record and medical literature and felt that there was no evidence that any of the medications the Veteran was taking would have aggravated the essential hypertension beyond a natural progression. A VA treating physician wrote in September 2011, that the Veteran has hypertension and that blood pressure is adversely impacted by chronic pain, depression and situational stress. In June 2012, the August 2011 VA physician reviewed the record and noted the September 2011 statement that the Veteran's blood pressure is adversely impacted by chronic pain, depression and situational stress. The physician wrote that during episodes of pain, high stress, and other types of chronic medical conditions, there can be a normal physiological response which would cause a person's blood pressure to become elevated. This was transient in nature, and the blood pressure would then return to baseline levels. The physician also noted that this response would occur in any person regardless of whether there was hypertension. It was not an aggravation of a pre-existing condition because after the stressor or event resolves, the blood pressure returned to the baseline level. Furthermore, the Veteran's hypertension was essential, which means it was not from a secondary cause. Recent laboratory results and medications did not reveal a secondary cause for the hypertension. It was less likely than not that the Veteran's hypertension had been aggravated beyond its natural progression from any service-connected disabilities or medications to treat service-connected disabilities. While the VA physician who provided the September 2011 opinion is competent to provide an opinion regarding the relationship between service-connected disabilities and the Veteran's hypertension, the opinion cannot be given probative value because it does not contain a rationale. The Court of Appeals for Veterans Claims has held, "...[M]ost of the probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Likewise, the March 2009 opinion from the chronic fatigue syndrome VA examination cannot be given probative value because no rationale was provided. See id. The opinion of the August 2007 VA examiner also cannot be given probative value. The examiner diagnosed the Veteran with essential hypertension, and noted that neither chronic fatigue syndrome or depression are associated with the risk of hypertension. This cannot be given probative value because the treatise materials and articles that the Veteran submitted state otherwise. The June 2012 opinion that it was less likely that the hypertension had been aggravated beyond its natural progression from any service-connected disabilities or medications to treat service-connected disabilities, can be given probative value because the physician was informed of the pertinent facts, fully articulated the opinion, and supported it with an explanation. See Nieves-Rodriguez, 22 Vet. App. at 303-04; see also Stefl, 21 Vet. App. at 124. As discussed above, the physician noted that the Veteran's hypertension was essential, which means it was not from a secondary cause. The August 2011 statement from the same physician indicated that the medical literature had been reviewed. While the Veteran has made statements to the effect that his hypertension is related to his chronic fatigue syndrome and major depressive disorder, including the medications taken for them, he is not competent to make such determinations. His statements on etiology are therefore not afforded probative value. See Jandreau, 492 F.3d at 1376-77; citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). Because the evidence preponderates against the claim of service connection for hypertension, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for hypertension, to include as secondary to chronic fatigue syndrome and major depressive disorder, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs