Citation Nr: 1321303 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 08-36 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Guam Office of Veterans Affairs ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from October 1968 to October 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. This case was the subject of a Board remand dated in February 2012. FINDING OF FACT Hypertension did not begin until many years after service and is not related to any injury, event or illness during service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). A May 2006 VCAA notice letter explained the evidence necessary to substantiate the claim for service connection for hypertension. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the May 2006 VCAA notice letter was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was again provided VCAA-compliant notice by a letter dated in May 2009. Although this notice was provided subsequent to initial adjudication of the claim, this is no more than harmless, non-prejudicial error since the Veteran had been provided fully compliant VCAA notice in May 2006, prior to initial adjudication of the claim, and, moreover, the claim was readjudication after May 2009, most recently in a March 2013 supplemental statement of the case. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and a report of VA examination. See 38 U.S.C.A. § 5103A(a)-(d). With respect to the VA examination, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it should ensure that the examination or opinion is adequate. There is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). VA examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo, 26 Vet. App. at 105. In this case, in a February 2012 decision and remand, the Board requested that the Veteran be provided a VA examination and opinion as to whether his hypertension is attributable to active service. The September 2012 VA examination report reflects a detailed review of the claims file and examination of the Veteran, and contains a fully reasoned explanation for the opinion provided. As a result, the examination is sufficient for adjudication of the Veterans of claims and of a substantial probative value. The September 2012 VA examination report is in compliance with the Board's February 2012 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges that the Veteran has contended that his hypertension is related to his exposure to herbicides in Vietnam. However, as will be discussed further below, the Veteran's assertion in this regard is of essentially no probative value because he does not have the medical training or expertise to provide an opinion on the complex medical matter of the etiology of his hypertension or the long-term consequences of exposure to herbicide agents. Further, hypertension is not one of the conditions for which service connection is presumed based on in-service exposure to herbicides. There is no probative evidence in the claims file to indicate that the Veteran's current hypertension may be related to his exposure to certain herbicide agents in Vietnam. As a result, a medical opinion as to this aspect of the Veteran's claim was not required. See 38 C.F.R. § 5103A(d)(2). The requirement under the VCAA for warranting a VA examination, that the evidence "indicates" that the veteran's disability "may" be associated with the veteran's service, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, that low threshold is not met with respect to the Veteran's contention that his hypertension may be due to in-service herbicide exposure. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. Merits of the Claim Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). Certain chronic disabilities, to include hypertension, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection for a chronic disease as set forth at 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). 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). In the present case, there is no diagnosis or other indication of hypertension during active service or within one year after discharge from active service. In other words, characteristic manifestations sufficient to identify the disease entity during service were not noted. 38 C.F.R. § 3.303(b). The Veteran does not contend that hypertension began during active service but rather that he has hypertension diagnosed after service that is related to service. See notice of disagreement received in October 2007. As will be discussed further below, a VA examiner has determined that the service treatment records do not show hypertension during active service, and that the medical records and histories in the claims file do not indicate hypertension until the 1990s, which is more than one year after discharge from service. Accordingly, a presumption of service connection for hypertension as a chronic disease is not warranted pursuant to the provisions of 38 C.F.R. §§ 3.307 and 3.309(a). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). Moreover, the diseases listed at 38 C.F.R. § 3.309(e) shall be presumed to be due to exposure to such herbicide agents if they have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). In addition, the United States Court of Appeals for the Federal Circuit has held that a veteran is not precluded by presumptive laws and regulations from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, hypertension is not listed at 38 C.F.R. § 3.309(e); there is no presumption that post-service hypertension is related to in-service exposure to certain herbicide agents to include Agent Orange. 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). Generally, in order to prevail on the merits on the issue of service connection, there must be competent evidence of current disability; competent evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, i.e., the etiology of hypertension first diagnosed many years after service, falls outside the realm of common knowledge of a lay person. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The United States Court of Appeals for the Federal Circuit has held that a significant lapse in time between service and post-service medical treatment may under certain circumstances be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In this case, the significance of the considerable lapse of time between active service and first treatment for hypertension is addressed by a competent medical professional in a September 2012 report of a VA examination and opinion. His opinion is well-reasoned and is based on an accurate reading of the evidence in the claims file, and is therefore of substantial probative value in this regard. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). At an October 1968 service entrance examination, the Veteran's blood pressure was measured as 130/80 sitting. The heart and vascular system were clinically evaluated as normal. In an associated report of medical history, the Veteran indicated he had no history of high or low blood pressure. At a February 1969 service department examination the Veteran's blood pressure was measured as 140/84 sitting, 138/80 recumbent, and 140/86 standing. The heart and vascular system were clinically evaluated as normal. In an associated report of medical history, the Veteran indicated he had no history of high or low blood pressure. At an August 11, 1971, service discharge examination, the Veteran's blood pressure was measured as 120/80 sitting. The heart and vascular system were clinically evaluated as normal. An August 21, 1971, clinical report of treatment indicates a blood pressure of 120/80. At a March 1976 reserve duty examination, blood pressure was measured at 138/92 sitting. In an associated March 1976 report of medical history, the Veteran indicated that he had no history of high or low blood pressure. At a VA examination in September 2012, the examiner opined that that it was less likely than not (that there was less than a 50 percent probability) that Veteran's hypertension was incurred in service or caused by an in-service injury, event, or illness. The examiner accurately noted the in-service and reserve duty measurements of blood pressure, as reported by the Board directly above. The examiner further noted that a January 2002 note of private clinical treatment indicated the Veteran had a blood pressure of 140/80, and that he was being prescribed Lisinopril at that time. The examiner further noted a May 13, 2002, private evaluation with a diagnosis of hypertension and prescription of Zestril. He further noted a VA treatment record that indicated a note of the Veteran's first visit for VA treatment in October 2006, which included a notation of "HTN dx in 1992." (The Board notes that private treatment records from 2001 forward and VA treatment records from 2006 forward consistently reflect diagnoses of hypertension or prescription of medications for hypertension.) The examiner explained that review of the claims file indicated no diagnosis of hypertension during service. The examiner recounted that the Veteran was noted to have a blood pressure of 140/84 on February 11, 1969, but that the rest of the recorded blood pressure readings during service were normal. The examiner opined that a single elevated blood pressure reading does not diagnose hypertension nor did it make the Veteran "pre-hypertensive." (Quotes in original.) The examiner elaborated that many factors can cause elevated blood pressure, such as pain, fear, exercise, emotions, etc. The examiner asserted that based on review of the Veteran's blood pressure measurements during military service, the Veteran did not have hypertension during those years. The examiner wrote that review of the claims file indicated that the Veteran had hypertension since around 1992, as stated in the VA treatment noted dated October 16, 2006, and that the Veteran continues to have hypertension and was taking Losartan for blood pressure control. The examiner concluded that as there was no evidence of hypertension during the Veteran's military service years, his essential hypertension was less likely than not incurred in or caused by claimed in-service injury, event, or illness. The Board finds the September 2012 VA examination report reflects a detailed and accurate history and review of the claims file and is well-explained and fully reasoned. The examination report is adequate in that it sufficiently informs the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo, 26 Vet. App. at 105. Further, because it is a well-reasoned finding of a medical professional based on a detailed and accurate history, it is competent medical evidence of a high probative value. See generally, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Veteran does not relate that his hypertension began during active service, but rather that hypertension diagnosed after service is related to his period of service and should be presumed to be related to service. As discussed at length above, the available presumptive provisions do not afford the Veteran a presumption of service connection for hypertension under the facts of this case, and the etiology of the Veteran's hypertension is not a matter within the lay competence of the Veteran. His lay-assertions that his hypertension is related to his period of active service, to include as due to exposure to herbicide agents, are of essentially no probative value. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As discussed above, there is no competent evidence in the claims file to indicate that the Veteran's hypertension may be due to exposure to herbicide agents. However, because of the documentation of a potentially elevated blood pressure during service, a VA examination and opinion was requested in this case. As the probative and competent evidence thereby obtained indicates that the Veteran has essential hypertension that did not begin during service or within one year after service, is not related to any incident of service, and did not begin until many years after service, the preponderance of the evidence is against the Veteran's claim. Accordingly, service connection for hypertension is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application in resolution of this appeal. ORDER Entitlement to service connection for hypertension is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs