Citation Nr: 1321264 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 06-14 346A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to herbicide exposure and/or diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from November 1961 to June 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in August 2008, before a Veterans Law Judge who is no longer employed by the Board. In May 2012, the Veteran was notified of this and given an opportunity to have another hearing. However, by his inaction, he declined such a hearing. The Board denied claims of service connection for right ear hearing loss disability and diabetes mellitus, to include as secondary to herbicide exposure, in August 2012, and remanded the issue of service connection for hypertension to the RO for further development. In September 2012, the Board denied the Veteran's request for reconsideration of its August 2012 decision concerning right ear hearing loss disability and diabetes mellitus. FINDING OF FACT Hypertension was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA 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 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in January 2005. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran a September 2006 correspondence that fully complied with Dingess. Secondary service connection notification was given in August 2012, curing the timing defects. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment and personnel records and other service information; assisted the Veteran in obtaining evidence; afforded the Veteran the opportunity to give testimony before the Board; and examined him for his claim in August 2012. The examination report is adequate as it contains sufficient information to make definitive findings of fact regarding the issue on appeal. The question of whether to afford the Veteran a medical opinion on the matter of whether in-service Agent Orange exposure caused the Veteran's hypertension, or on the matter of whether the Veteran's hypertension was caused or aggravated by his diabetes mellitus, has been considered. In this regard, the Board notes that the Veteran served in the Navy aboard the U.S.S. MAUNA KEA (AE32) from May 1964 to November 1964, and aboard the U.S.S. CASTOR (AKS-1) from May 1965 to May 1966, and is attempting to link his hypertension to in-service Agent Orange exposure. In August 2004, he indicated that he was exposed to Agent Orange in Vietnam when anchored out. In August 2010, when asked to indicate how he got ashore while in Vietnam, he reported that he had been on ship. In April 2011, he indicated that he never stepped ashore from either of the above ships while they were in Vietnam. These statements are more probative than his August 2012 report that he had duties on the docks, as the former statements were made when he apparently thought that being on ship off the coast of Vietnam was sufficient to establish presumptive Agent Orange exposure. [In September 2006, he advocated for his claim under the Haas case which found that service in the waters of Vietnam was sufficient to trigger the presumption of Agent Orange exposure. However, that case was later reversed. compare Haas v. Nicholson, 20 Vet. App. 257 (2006), with Haas v. Peake, 525 F.3d 1168 (2008)]. The later contradictory statements from him started in August 2012, at the time of his request for reconsideration of a Board decision which denied compensation benefits for diabetes mellitus in part based on a finding that he had not been exposed to Agent Orange in service, as he had not set foot on land in Vietnam. There is no persuasive evidence of record that the Veteran set foot in Vietnam during the Vietnam Era and there is no persuasive evidence of record indicating that the Veteran was actually exposed to Agent Orange in service. Accordingly the Board finds that a VA examination on the matter of whether the Veteran's current hypertension disability is related to service is not necessary. A medical opinion on the matter of whether the Veteran's current hypertension is related to diabetes mellitus is not necessary, as service connection for diabetes mellitus has been denied. See 38 C.F.R. § 3.159. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's August 2012 remand by providing the Veteran with VCAA notice, developing for VA medical records, obtaining the August 2012 VA examination report, and readjudicating the claim. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. There is a presumption of Agent Orange exposure under 38 U.S.C.A. § 1116 (West 2002) for Veteran's who set foot in Vietnam during the Vietnam Era. There is no presumption of service connection for hypertension based on in-service Agent Orange exposure. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309; Haas v. Peake, 525 F.3d 1168 (2008). Service treatment records contain no history, complaints, or diagnoses of hypertension. The Veteran's blood pressure was 135/69 on service entrance examination in July 1961; 134/90 on extension of enlistment examination in March 1966; and 142/88 on service discharge examination in June 1966. The first mention of hypertension of record is when the Veteran was seen to establish a VA primary care provider in November 2003, and he reported hypertension. The Veteran then filed a claim for service connection for hypertension in August 2004. At the time, he indicated that he did not know when it began, that he had received treatment for it for 20 years, and that it was due to Agent Orange exposure while anchored out in Vietnam. The Board remanded the case to the RO in August 2012, for an examination with a medical opinion as to whether it is at least as likely as not (a probability of at least 50 percent) that the Veteran's hypertension is related to or was aggravated by service. On VA examination in August 2012, the examiner reviewed the Veteran's claims folder and interviewed the Veteran, who indicated that he was first treated for hypertension right after getting out of service. The Veteran reported that he had been found to have hypertension after he presented with lightheadedness, and that he had been on medications continuously since that time. He did not recall any problems with hypertension during his active service. The examiner noted service findings and that in August 2004, the Veteran had indicated that the date of onset of his hypertension was unknown, and that he had been treated for it for 20 years. At the time, he was claiming service connection for hypertension due to Agent Orange exposure, not due to onset during or immediately after service. The examiner opined that the Veteran's hypertension was less likely than not related to his service. The rationale was that to establish a diagnosis of hypertension, measurements are supposed to be taken on at least 2 days on a routine exam, when the person is not ill. The Veteran did not meet this criteria in service. The only objective evidence of hypertension was 1 elevated blood pressure on exit examination, with minimal increase to 142/88. The examiner indicated that the Veteran was noted to have a blood pressure of 134/90 in March 1966, but this appeared to correlate with treatment for pneumonia, so it could not be used to diagnose hypertension. The examiner noted that there are no records indicating that the Veteran was treated for hypertension continuously since 1966. To the contrary, on the Veteran's initial application for disability benefits in 2004, he self reported that he had been treated for hypertension for 20 years, in contrast to the 40 years that he was now claiming, and that the date of onset was unknown. No private medical records had been provided to establish the actual date of diagnosis of hypertension. Since there was no evidence presented showing continued elevation of blood pressure after the exit examination in 1966, and the Veteran reported that he had been treated for hypertension since around 1994, it was the examiner's opinion that there was not a 50 percent or greater likelihood that the Veteran's hypertension is related to his service. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's hypertension. It was not manifested in service and the examiner in August 2012 indicated that the Veteran did not meet the criteria for a diagnosis of it in service. Accordingly, the Board concludes that it was not manifest in service. Additionally, the preponderance of the evidence is against a finding that it was manifest to a degree of 10 percent within 1 year of separation. No treatment reports have been submitted showing that it was manifest within 1 year after separation, and when the Veteran was first asked about it in August 2004, he indicated that he did not know when it began and that he had only been treated for it for 20-years. Furthermore, there is no competent evidence relating it to service and the examiner in 2012 concluded that the Veteran's hypertension was unrelated to service, for reasons that were clearly explained. Continuity since service is not shown. While this was recently claimed, there are no medical records in support of this, or showing hypertension prior to 2003, and the Veteran had earlier, in August 2004, dated his hypertension to 1994. While the Veteran argues that his hypertension is due to in-service Agent Orange exposure and reports that he was diagnosed with hypertension right after getting out of service, there is no credible evidence of actual or presumed in-service Agent Orange exposure or of a relationship between his hypertension and Agent Orange exposure, and he is not competent to render these opinions. Medical evidence is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While he asserted in August 2012 that he had been taking blood pressure medications since his service, any implicit assertion that he took them in service is inconsistent with the fact that service treatment records and hypertension does not appear to have been present or diagnosed in service. Service treatment records are where this would be documented, especially if he was receiving medication for such. Moreover, there is no credible evidence to support a finding that he took medications for hypertension until years after service. He had earlier indicated in August 2004 that he had received treatment for hypertension for only 20 years. His later contradictory statement is clearly lacking in credibility as merely self-serving, and is unsupported. As service connection has not been granted for diabetes mellitus, service connection for hypertension as secondary to it cannot be granted, as a matter of law. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for hypertension is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs