Citation Nr: 1321668 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 08-16 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, including as secondary to service-connected posttraumatic stress disorder (PTSD) or asthma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active military duty from December 1950 to December 1952. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, in pertinent part denying service connection for hypertension. In July 2012 and February 2013, the Board requested and obtained an expert opinion, with addendum, from the Veterans Health Administration (VHA). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent evidence shows that the Veteran's current hypertension is not related to active service and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the Veteran has not demonstrated any prejudicial or harmful error in VCAA notice and, as discussed herein, the Board has not identified any. VA has fulfilled the above requirements with regard to the claim of entitlement to service connection for hypertension. By a December 2006 VCAA letter, the Veteran was informed of the evidence needed to establish entitlement to service connection for hypertension, on both direct and secondary bases. 38 C.F.R. § 3.303, 3.310. The letter also appropriately informed of the relative duties of the Veteran and VA in obtaining evidence in furtherance of the claim. This included informing that it was ultimately the Veteran's responsibility to see that evidence required to sustain the claim is obtained. The letter also informed the Veteran how VA determines disability ratings and effective dates for ratings, in general compliance with the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service medical records and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that the RO appropriately assisted the Veteran in obtaining indicated all available treatment and evaluation records, including both VA and private records. Indeed the Veteran identified VA treatment records dated from 1952 from the Biloxi VA Medical; however the treatment records were deemed unavailable for review. See August 2010 Formal Finding of unavailability for review Memorandum. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board obtained expert opinions from VHA in September 2012, in January 2013; and in March 2013 concerning the contended causal relationship between hypertension and active service, to include as due to service-connected PTSD, and/or asthma. Given that the pertinent medical history was noted by the expert who provided an opinion concerning the etiology of the Veteran's hypertension but did not actually examine him, the VHA opinions set forth detailed findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the opinions of record, are adequate for rating purposes and an additional opinion is not necessary regarding the service connection claim for hypertension adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. II. Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is 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) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, certain chronic diseases, including hypertension, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disorders diagnosed more than one year after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Additionally, 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. 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). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the decision in Allen v. Principi, 7 Vet. App. 439 (1995), which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. The Veteran filed the current claim in November 2006 and the new provisions apply. In addition to the above requirements, there are alternative methods of establishing service connection under 38 C.F.R. § 3.303(b). For example, a claimant may establish service connection by chronicity. Chronicity is established if the claimant can demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. See Savage v. Gober, 10 Vet .App. 488 (1997). Alternatively, the claimant may establish service connection by continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Savage, 10 Vet. App. at 495. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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, (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, 492 F.3d at 1372. Hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104 Note(1) to Diagnostic Code 7101. The Veteran's service treatment records are negative for a diagnosis or indication of hypertension. His blood pressure on enlistment examination in September 1950 was 106/58. There is no separation examination noted in the file. A June 1986 VA treatment record documents no past history of hypertension. VA treatment records dated from April 2001 to the present includes an April 2001 treatment record that notes the Veteran is on medications for hypertension. Several subsequent VA treatment records document the Veteran's hypertension and treatment for such. None of the treatment records provide an opinion as to the etiology of the Veteran's hypertension. In an October 2006 private treatment report, the Veteran's provider, A. R. S., noted that among the Veteran's current issues, there was a recent onset of hypertension. Accordingly, since the Veteran has a demonstrated diagnosis, the first element of service connection is established. The Veteran submitted a claim for service connection for hypertension in November 2006. At that time, he indicated that his hypertension was due to his service-connected asthma. In his May 2007 notice of disagreement, the Veteran stated that his hypertension was directly related to his PTSD and not the service-connected asthma. The Board finds that the preponderance of the evidence is against service connection for hypertension on a presumptive basis. Significantly, there is no evidence of diagnosed hypertension within one year after military service. The first noted diagnosis and treatment for hypertension was in 2001 which of course is more than one year after his discharge from military service in 1952. The claim fails under this theory of entitlement. The Board also finds that the preponderance of the evidence is against service connection for hypertension on a direct basis. First, there is no evidence of an indication or diagnosis of hypertension in service. As above, His blood pressure on enlistment examination in December 1950 was 106/58 and there were no additional blood pressure readings noted. Second, the postservice treatment records note a history of hypertension beginning around 2001, approximately 49 years after military service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Under this factual scenario, there is no medical evidence or lay evidence of in-service occurrence of hypertension. Consideration of secondary service connection will be addressed below. Finally, there is no medical evidence in the record that links any current hypertension to an incident of the Veteran's active military service, to include the Veteran's service-connected PTSD and or asthma. Significantly, the VHA expert reviewed the entire claims file and noted in the September 2012 opinion that the Veteran's hypertension was not caused by his service or his service connected issues. He opined that the most common cause of hypertension in adults is essential hypertension which does not have any identifiable causes. The expert noted that there are several risk factors for essential hypertension that include race, advanced age, genetic predisposition, physical inactivity, obesity, alcohol consumption, increased salt intake and dyslipidemia. He further rationalized that based on the chart review that by chance if the Veteran's hypertension was related to PTSD or asthma, hypertension would have manifested prior to 2001 as the Veteran has had PTSD and asthma for many years prior to 2001. Furthermore, in March 2013 the VHA expert opined in his addendum opinion that it was unlikely that the Veteran's hypertension was permanently aggravated or worsened as a result of the service-connected asthma and/or PTSD. He opined that there was a lack of evidence from medical literature indicating a causal relationship between asthma or PTSD symptoms and worsening of hypertension. The expert noted that although it was possible that during acute asthma attacks, higher levels of stress might result in periods of higher blood pressures, the situation is usually transient and it is not considered chronic worsening beyond it natural progression. Consequently, there is no reasonable possibility of substantiating his hypertension claim on a direct or secondary basis. See Waters v. Shinseki, 601 F.3d 1274(Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the Veteran, in which case an examination may not be required). It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, may be credible regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, statements as to elevated blood pressure readings continuing immediately after service are not found to be persuasive in light of the fact that the Veteran did not report a continuous history of hypertension with treatment on his original November 2006 claim. Furthermore, the first mention of continuous treatment since service for hypertension was in a July 2010 statement, four years after the Veteran's original hypertension service connection claim. The Veteran's contemporaneously reported histories, given to physicians in connection with treatment, are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Here, it appears that the given history of hypertension has changed over the years. For these reasons, continuity of symptomatology has not here been established, either through the medical evidence or through the Veteran's statements. Hypertension was not demonstrated during service, at separation, or within one year of separation. It was not demonstrated until 2001. Such findings are inconsistent with allegations of continuity of symptomatology. As noted above, there is no competent evidence linking the remote onset of hypertension to service; or in the alternative, to a service connected disability. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hypertension, including as secondary to service-connected posttraumatic stress disorder (PTSD) or asthma is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs