Citation Nr: 1321490 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 07-35 568 ) 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: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1961 to November 1964. He also had subsequent service in the United States Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Honolulu, Hawaii Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, February 2012, and March 2013 the case was remanded for further development. FINDING OF FACT Hypertension was not manifested during the Veteran's period of active duty ending in November 1964 or in the first year following his discharge from that period of service, and is not shown to be related that period of service, or to have been incurred or aggravated during a period of active duty for training (ACDUTRA). CONCLUSION OF LAW Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 101, 106, 1110 , 1112, 1113, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefit, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to, and following the initial adjudication. December 2003, April 2009 and March 2011 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The April 2009 and March 2011 letters also provided him notice regarding disability rating and effective date criteria. Any timing defect was cured by subsequent readjudication ( most recently in a March 2013 supplemental statement of the case). He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice VA and private treatment records have been secured. Treatment records from the U.S. Naval Hospital in Guam have been associated with the claims file. The Veteran has not been accorded a VA examination pertinent to his claim for hypertension. With respect to such claim, an examination for the purpose of obtaining a nexus opinion is not needed. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Because these conditions have not been met, as will be discussed below, a VA examination is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. To establish service connection for a claimed disability, there must be evidence of the claimed disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disorder may also be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). Service connection also may be granted for any disease initially 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including hypertension) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for hypertension). U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm (millimeters of mercury) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Code 7101, Note (1). A 10 percent rating under Diagnostic Code 7101 requires diastolic pressure predominantly 100 or more, or systolic pressure predominantly 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. 38 C.F.R. § 4.104, Diagnostic Code 7101. The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); see also 38 C.F.R. § 3.6. Specifically with respect to Reserve members, diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). However, the presumptions of soundness and aggravation do not apply to periods of ACDUTRA or INACDUTRA. The fact that a claimant has established status as a Veteran for other periods of service (e.g., a prior period of active duty) does not obviate the need to establish that he is also a Veteran for purposes of the period of ACDUTRA or INACDUTRA where the claim for benefits is based on that period of ACDUTRA or INACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). A layperson is generally not capable of opining on a matter requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 layperson. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that all of the evidence in the Veteran's claims file and in Virtual VA with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. It is not alleged, or suggested by the record, that the Veteran's hypertension is directly related to his active duty service (i.e., was incurred or aggravated during service from 1961 to 1964). The Veteran claims, in essence, that his hypertension was aggravated by a period(s) of active duty for training (ACDUTRA) in the U.S. Army Reserves in 1985 and 1988. The National Personnel Records Center (NPRC) has certified (see April 2011 response) that the Veteran had no active duty other than for training purposes. A March 2013 memorandum notes the RO verified that the Veteran had ACDUTRA from February 20, 1988 to March 6, 1988. It was also noted that he had INACDUTRA July 27-28, 1985, August 3-4, 1985, March 12, 1988, and April 9-10, 1988. The Veteran claims he had ACDUTRA from July 1, 1985 to August 31, 1985 and March 1, 1988 to April 30, 1988. To support this contention, he submitted several documents (orders) from the Department of the Army (DOA), including an April 1985 order ordering his reserve unit (Co D, 411th Engineer Battalion) to annual training for the period from June 15, 1985 to June 29, 1985; a May 1986 order ordering his reserve unit (Co D, 411th Engineer Battalion) to annual training for the period from August 9, 1986 to August 23, 1986; and a February 1989 order ordering members of his reserve unit (297th Engineer Company) to "AT" [annual training] from March 4, 1989 to March 30, 1989. (He also submitted a March 1987 order (not addressed to the Veteran, but to another reservist) that ordered that reservist to active duty training (ADT) for a period of three days (plus allowable travel time) beginning March 9, 1987. As it pertains to another person, and does not mention the Veteran, it is not relevant evidence in this matter. Additional evidence (DOA orders) (received at the Appeals Management Center in March 2013) certifies the Veteran's various periods of ACDUTRA and includes a June 1983 order ordering the Veteran's reserve unit (Co D, 411th Engineer Battalion) to annual training for the period from August 6, 1983 to August 20, 1983; an April 1985 order ordering his reserve unit (Co D, 411th Engineer Battalion) to annual training for the period from June 15, 1985 to June 29, 1985; a May 1986 order ordering members of his reserve unit (Co D, 411th Engineer Battalion) to "AT" [annual training] from August 9, 1986 to August 23, 1986; a March 1987 order ordering members of his reserve unit (Co D, 411th Engineer Battalion) to annual training from March 28, 1987 to April 11, 1987; a January 1988 order ordering members of his reserve unit (Co D, 411th Engineer Battalion) to annual training from February 20, 1988 to March 6, 1988; a February 1989 order ordering members of his reserve unit (Co D, 411th Engineer Battalion) to annual training from March 4, 1989 to March 17, 1989; a February 1990 order ordering members of his reserve unit (297th Engineer Company) to annual training from March 4, 1990 to March 17, 1990; a July 1991 order ordering members of his reserve unit (Co D, 411th Engineer Battalion) to annual training from August 5, 1991 to August 19, 1991; a July 1992 order ordering members of his reserve unit (297th Engineer Company) to annual training from July 26, 1992 to August 9, 1992; a July 1994 order ordered the Veteran to active duty special work (ADSW) from August 1, 1994 to August 6, 1994; and an April 1996 order ordered the Veteran to active duty training from April 29, 1996 to May 6, 1996. Annual training is ACDUTRA and, as is noted above, the presumptions of soundness/aggravation do not apply to periods of ACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474 (1991). The Veteran's STRs, during his regular period of service from November 1961 to November 1964 are silent for any complaints, findings, treatment or diagnosis relating to hypertension. On September 1961 enlistment examination his blood pressure was 120/84; and on the August 1964 separation examination his blood pressure was 118/87. STRs from the Veteran's reserve service (from November 1964 to November 1967, and August 1978 to August 1996) show on July 1978 enlistment examination his blood pressure was 130/88. On July 1979 clinic visit for complaints related to the eye, the Veteran's blood pressure was 120/60; and at a subsequent visit to the clinic that same month, his blood pressure was 120/78. On June 1982 examination, the Veteran's blood pressure was 164/94, and in an accompanying Report of Medical History he indicated that he did not know if he had high or low blood pressure. A May 1983 health record shows his blood pressure was 140/86. On a May 1983 (over 40 physical fitness program) form, the Veteran indicated that he was being treated with Diazide for hypertension. His blood pressure at that time was 130/90. A June 1, 1985 acute care clinic report shows he had complaints of cold sweat, headache and fever. His blood pressure was 136/70. On May 1986 annual physical examination his blood pressure was 130/82. In a May 1986 Report of Medical History, the Veteran endorsed that he had high or low blood pressure. The examiner noted that the Veteran had had elevated blood pressure for a while (5 years) and took medication for it. On May 1987 over 40 physical, his blood pressure was 126/84. On February 2, 1988 the Veteran was seen in emergency care with complaints of having a headache; his blood pressure was 152/90. On September 1989 retention examination, his blood pressure was 146/88. On May 1990 retention examination, his blood pressure was140/80. Another blood pressure reading taken that same day was 150/90. On July 1992 retention examination, his blood pressure was 136/80. On May 1994 retention examination, his blood pressure was 146/78. The examiner noted the Veteran had hypertension for the past 10 years, well controlled with medication. In an October 1995 physical profile, the Veteran's medical condition included hypertension. A June 1996 dental health questionnaire noted the Veteran was taking medication for high blood pressure. Treatment records from FHP/PacifiCare Guam from February 1995 to December 1999 show the Veteran had elevated blood pressure readings in February 1995 (172/80), February 1996 (140/86), March 1996 (146/80), and June 1998 (188/78). In an October 2005 letter Dr. Charles noted that the Veteran had a history of hypertension. Guam Naval Hospital treatment records show the Veteran had elevated blood pressure in June 2002 (160/82), November 2002 (154/80), September 2003 (144/97), April 2004 (164/68), February 2005 (156/86), March 2006 (179/84 and 178/80), March 2007 (162/84), August 2007 (176/83), May 2010 (152/70), December 2010 (186/74), and February 2011 (140/64), with a diagnosis of hypertension. In July 2009 the Veteran was seen at the Naval Hospital in Guam for prostate cancer. His blood pressure reading at that time was 152/70. The assessment was hypertension (systemic). It was noted that his blood pressure was not at goal and his medication was increased. In August 2009 the Veteran was seen at a VA outpatient clinic for a urology pre-operative clearance. At the time his blood pressure was 190/81. The assessment was hypertension. His repeat blood pressure was within normal limits (135/68). It was noted that his blood pressure was usually adequately controlled and no medication changes were indicated (repeat blood pressure, improved). The evidence does not show (nor is it alleged) that hypertension was manifested during the Veteran's period of active duty ending in November 1964; that hypertension was diagnosed in the first year following his discharge; or that his hypertension is somehow otherwise related to that period of service. The Veteran argues that service connection for hypertension is warranted because it was initially diagnosed during a period of ACDUTRA, or alternatively, because it was aggravated by his period or periods of ACDUTRA. When the Veteran re-enlisted in the reserves in 1978 his blood pressure was slightly elevated (130/88). This was the first noted blood pressure reading showing a slight elevation following his discharge from active duty service in 1964 (approximately 14 years earlier); it was not during a period of ACDUTRA. The record suggests that the Veteran's hypertension was diagnosed sometime in the early 1980's; on June 1982 examination (not while on ACDUTRA); his blood pressure was 164/94; and he reported in medical history report that he did not know if he had high blood pressure. Then, in May 1983 (again not while on ACDUTRA) it was noted that he was taking Diazide for hypertension. He was subsequently ordered to annual training August 6- 20, 1983, and the record does not show that his blood pressure was elevated during that period. On June 1, 1985 (approximately 2 weeks prior to orders to report for annual training (June 15-29, 1985)) his blood pressure was 136/70 (not indicative of hypertension). In May 1986 he noted that he had high blood pressure (when he reported his medical history); the examiner noted that the Veteran had high blood pressure for about 5 years, for which he took medication. In May 1986 his blood pressure was 130/82 and in May 1987 it was 126/84. Between these dates, he had annual training from August 9 to 23, 1986 and March 28 to April 11, 1987. These dates show that prior to and after his annual training in August 1986 and April 1987, his blood pressure was essentially in the normal range, and do not suggest an increase in the interim. On February 2, 1988 (approximately 3 weeks before entering ACDUTRA from February 20, to March 6, 1988) he was seen in emergency care; his blood pressure was 152/90. In September 1989 (approximately 6 months after the ACDUTRA that ended March 30, 1989) his blood pressure was 146/88 (i.e., lower than recorded in February 1988). In May 1990 his blood pressure was 140/80 and 150/90. Prior to May 1990 he was ordered to annual training from March 4 to March 17, 1990. The record does not show elevated blood pressure during that period of annual training. There is no record that hypertension was diagnosed during annual training from August 5 to 19, 1991 and from July 26 to August 9, 1992; when the Veteran's blood pressure was taken in July 1992 during his retention examination, it was 136/80, which is essentially normal and not indicative of hypertension. He had an elevated blood pressure, 146/78, in May 1994 and he subsequently had a period of ADSW for 5 days beginning August 1, 1994. In February 1996 his blood pressure was 140/86 and in March 1996 it was 146/80; he subsequently had ACDUTRA for 3 days beginning April 29, 1996. While the evidence shows the Veteran had elevated blood pressure (in some instances at hypertensive levels) during his reserve service , it does not show that hypertension was initially manifested, treated, and/or diagnosed during a period of ACDUTRA. Therefore service connection on the basis that hypertension was incurred during a period of ACDUTRA is not warranted. The analysis turns to whether the Veteran's hypertension was aggravated by (increased in severity during ) a period or periods of ACDUTRA. Whether a disability increased in severity during a specified period of time is determined by an analysis of the disability before, during, and subsequent to such period of time. Here, there is no evidence that the Veteran's hypertension increased in severity during a period of ACDUTRA. While the record shows a number of periods of ACDUTRA that have been verified, and a number of elevated blood pressure readings during his reserve service, the elevated reading do not match up with (are not shown to have been during or proximately following) the periods of verified ACDUTRA. Based on the record for consideration (which appears complete to the extent possible - although it does not include the initial diagnosis of hypertension, which occasion the Veteran has not identified) the Veteran's hypertension pre-existed all periods of ACDUTRA since 1982, and there is no evidence of an increase in severity of the disease during any specific period of ACDUTRA. The Veteran has specifically pointed to periods of ACDUTRA in 1985 and 1988 as being when an alleged increase occurred. Prior to the June 1985 period of ACDUTRA (on June 1, 1985) the Veteran's blood pressure was, 136/70 the first blood pressure reading subsequent to the June 1985 ACDUTRA (in May 1986) the Veteran's blood pressure was 130/82. And while medical records outlined above show that 3 weeks prior to the (February 20, to March 6, 1988) period of ACDUTRA, on February 2, 1988, the Veteran was seen on an emergency basis for headaches, and had a blood pressure of 150/90, there is no evidence of blood pressure elevation during that period of ACDUTRA. The Board notes the record does show elevated blood pressure readings, some at a hypertensive level while the Veteran was serving in the Reserves, however, those elevated readings were either while he was not in line of duty or were during periods of INACDUTRA. As hypertension is a disease and not an injury (or acute myocardial infarction, cardiac arrest, or cerebrovascular accident) it may not be service connected on the basis that it was incurred or aggravated during a period of INACDUTRA service. Accordingly, service connection for hypertension on the basis that it increased in severity during a qualifying period of service is not warranted. To the extent the Veteran offers his lay opinion/argument in an attempt to establish that his hypertension was aggravated during ACDUTRA such lay statements are not probative evidence in the matter. Hypertension is an insidious process, the progression of which is beyond the scope of lay observation, and is established by diagnostic studies. See Jandreau v. Nicholson, 492 F.3d 1372, 1374, 1377 (Fed. Cir. 2007). The Veteran's lay assertions are unaccompanied by citation to factual data (e.g., blood pressure readings showing, or suggesting, an increase in severity of the hypertension during any period of ACDUTRA. As has been noted above, the elevations in blood pressure readings shown in the record do not match up with the certified periods of ACDUTRA so as to suggest worsening during any specific period. In fact, there is no probative evidence in the record that the Veteran's hypertension increased in severity during any period of ACDUTRA. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim, and the appeal in this matter must be denied. ORDER Service connection for hypertension is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs