Citation Nr: 1321888 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 06-27 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for heart disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to September 1975 and from January 1991 to May 1991. He also had various periods of active duty for training and inactive duty for training as a member of the U.S. Army Reserves and the U.S. Navy Reserves. He retired from the Reserves in May 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal of March 2005 and October 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The case was most recently before the Board in December 2010, at which time the Board remanded the claims for additional development and adjudicative action. The case has now been returned to the Board for further appellate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The issue of entitlement to service connection for a heart disability is addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT Hypertension was not present until more than one year following the Veteran's discharge from his second period of active service, it did not begin or permanently increase in severity during a period of active duty for training, and it is not related to the Veteran's extended periods of active duty or his periods of active duty for training. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, and service incurrence or aggravation of hypertension may not be presumed. 38 U.S.C.A. §§ 101, 106, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in November 2006, prior to the initial adjudication of the claim. The Board finds that VA's duty to assist the Veteran has also been satisfied. The Veteran's service treatment records and relevant post-service VA and private medical records are of record. There is no indication in the record that additional, existing evidence relevant to the issue decided herein is available. The Veteran was provided VA examinations with respect to his claim, with the first examination occurring in July 2009. In the December 2010 remand, the Board found this examination report to be inadequate and directed that he be afforded another examination. The Veteran was provided an additional VA examination in February 2011 to determine the etiology of his claimed hypertension. The examiner provided an opinion as to the etiology of the Veteran's hypertension. This medical opinion is adequate, as it was based upon a review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Even though not all the Veteran's private treatment records were available at the time of the February 2011 examination, the Board finds the February 2011 examination report to still be adequate because the examiner demonstrated awareness of the claimed nature and onset of the Veteran's disorder and considered the in-service and post-service medical treatment of the condition, as well as the Veteran's own lay observations. Thus, the Board finds that there has been substantial compliance with its December 2010 remand as the Veteran has been provided an adequate examination with respect to his claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served 90 days or more of continuous, active service during a period of war or after January 1, 1947, and certain chronic diseases, including hypertension, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods do not apply to periods of ACDUTRA and INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Board has reviewed all of the evidence all of the evidence of record, with an emphasis on the evidence relevant to this appeal. 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) (holding that 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 Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran claims that his currently diagnosed hypertension is related to his second period of active duty. He claims that he demonstrated elevated blood pressure at the time of his separation from his second period of active duty service, which he believes shows pre-hypertension. He maintains that had he received treatment for pre-hypertension prior to his second separation from the military, he would not have developed his current hypertension disorder. The Veteran essentially asserts that his hypertension had its onset during service and continued during his subsequent periods of reservist service. As the Veteran does not claim, and the evidence of record does not indicate that his hypertension had its onset or is related to his periods of active duty and reservist service prior to January 1991, these periods of service will not be discussed. Service treatment records dated during the Veteran's second period of active service and subsequent reservist service are negative for a hypertension diagnosis. The Veteran's blood pressure was assessed during his second period of active duty service and the records from this time period show blood pressure readings of 126/82 in March 1991 and 145/84 in April 1991. His blood pressure was assessed during his reservist service in September 1995 and was reported as 142/92. On a September 1995 report of medical history, the Veteran denied ever having high or low blood pressure. Private treatment records dated as early as August 1996 show the Veteran sought medical treatment after experiencing chest pain and shortness of breath with physical exertion. The examinations revealed elevated blood pressure readings. These records list his diagnoses as including labile hypertension and show that the Veteran was prescribed anti-hypertensive medications. An April 1997 private treatment record shows a diagnosis of borderline hypertension. Subsequent treatment records show a diagnoses of hypertension starting in July 1998. A December 2005 VA examination confirmed the presence of hypertension. In a June 2006 addendum report, the examiner noted that she reviewed the claims file and she determined that the Veteran had no evidence of hypertension while in the military. The examiner stated that there was one hypertensive episode, but she did not identify the date of this occurrence. She explained, however, that three separate blood pressure readings greater than 140/90 would be needed for the diagnosis, which was not evidenced in the Veteran's service treatment records. In July 2009, a VA examiner reviewed the claims file and noted the Veteran's September 1995 service treatment record showed a blood pressure reading above normal range. The examiner stated that this was the only blood pressure reading found during a review of the service treatment records that might suggest hypertension. The examiner explained, however, that the diagnosis of hypertension is not made on a single reading and the criteria for the diagnosis would not be met unless the Veteran had repeat measurements on separate days confirming this finding. The examiner did not discuss the April 1991 service treatment record reflecting the Veteran's blood pressure prior to his discharge from active duty service. As directed by the December 2010 Remand, the Veteran underwent a VA examination in February 2011. He reported his belief that his hypertension began in 1991 during his active duty service. The Veteran relayed, however, that he was not prescribed medication for his condition until approximately 1998 after his separation when he was also treated for a heart condition. The examiner continued a diagnosis of hypertension. The examiner stated that the date of onset of the Veteran's hypertension could not be definitively established, but that it was likely present before 2004. The examiner reviewed the claims file, and she specifically noted the Veteran's blood pressure readings reported in the March 1991, April 1991, and September 1995 service treatment records. Based on this review of the claims file and the results of the examination, the examiner opined that the Veteran's service treatment records, to include the 1991 and 1995 records, did not support a definitive diagnosis of hypertension. The examiner explained that a hypertension diagnosis is not based on one isolated reading. She also highlighted that the April 1991 in-service reading was obtained during an ER visit, not a routine office screening. The examiner further noted that the March 1991 service treatment record shows that the Veteran's blood pressure was normal. Although the examiner noted the Veteran's elevated blood pressure reading in September 1995, she concluded that elevated blood pressure in 1991 or 1995 is not adequate to establish a diagnosis of hypertension. The February 2011 examiner further commented that there is also medical judgment in diagnosing this condition, in that if a person has markedly elevated blood pressure readings on several separate occasions, this would also indicate hypertension. However, the examiner found this not to have occurred in the Veteran's case based on the blood pressure readings documented in his service treatment records. The examiner noted that the Veteran had two elevated, but not markedly elevated, blood pressure levels on two separate, isolated occasions several years apart. Thus, the examiner opined that there was less than a fifty percent probability that the Veteran's hypertension was etiologically related to his active duty service. She further opined that it was less than a fifty percent probability that the Veteran's hypertension had its onset during active service. Having reviewed the evidence of record, the Board finds that the evidence of record is against the claim for service connection for hypertension. While the Veteran claims contrary, the evidence does not show that he experienced the onset of hypertension during his second period of active duty service and that the condition continued during his reservist service. Pursuant to VA regulations, "the term hypertension means that the diastolic blood pressure is predominately 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm." 38 C.F.R. § 4101, Diagnostic Code 7101 Note (1). The available service treatment records do not reflect any complaints of, or treatment sought for, any problem related to high blood pressure during active duty or reservist (ACDUTRA) service or indicate that his blood pressure levels reached the thresholds for hypertension as defined by VA. While the Veteran's blood pressure was slightly elevated in April 1991 and September 1995, he was not diagnosed with hypertension during service. Essentially, the evidence of record fails to show that hypertension had its onset during his second period of active duty service or subsequent reservist service. Furthermore, the clinical evidence of record does not reflect a diagnosis of hypertension until 1996, many years after the Veteran's separation from active duty. There is no medical evidence showing that he was diagnosed with hypertension before August 1996. See Maxson v. Gober, 230 F.3d 1330, 1333 (2000) (Evidence of a prolonged period without medical complaint and the amount of time that elapsed since active duty service can be considered as evidence against a claim.). Therefore, presumptive service connection for hypertension as a chronic disease fails because there is no competent evidence of record showing that hypertension was manifested within one year of the Veteran's separation from active service in 1991. 38 C.F.R. §§ 3.307, 3.309. As noted above, presumptive service connection does not apply to his subsequent period of reservist service. Biggins, 1 Vet. App. at 477-78. Moreover, the evidence of record is negative for a medical opinion stating that the Veteran's hypertension began in or is related to service. The only medical evidence of record assessing the relationship between the Veteran's hypertension and service, to include his in-service blood pressure readings, are the December 2005, July 2009, and February 2011 VA examiners' opinions, which are all against the claim for service connection. Here, the Board finds the February 2011 VA opinion to be the most probative medical evidence in this regard. Based on a review of the claims file and relevant medical literature, along with the findings of the clinical examination and consideration of the Veteran's competent lay statements, the February 2011 examiner provided an opinion against the claim for service connection for hypertension. The Board finds this opinion to be highly probative and compelling evidence against the Veteran's claim that his hypertension began in or is related to his second period of active duty service. Moreover, the February 2011 VA medical opinion is against any assertion that his hypertension began in or was aggravated during any subsequent period of ACDUTRA service. See Nieves-Rodriguez, 22 Vet. App. 295, 299-301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no competent medical evidence of record to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). In reaching the above decision, the Board has given consideration to the Veteran's statements that his hypertension began during his active duty service and continued thereafter. The Board notes that lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). To the extent that the Veteran has made statements regarding the onset and nature of the claimed disability, he is certainly competent to describe the extent of his hypertension symptomatology and to describe his in-service and post-separation experiences. However, he is not competent to ascertain the etiology of his hypertension disorder as such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges that the Veteran is a dentist and has enjoyed a long career in this profession spanning multiple decades. While the Veteran's training as a dentist would clearly give him expertise in the diagnosis and treatment of dental and various oral conditions, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render an opinion regarding a vascular disorder or medical issues regarding the etiology of his hypertension. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against his claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. ORDER Service connection for hypertension is denied. REMAND As for the remaining claim, the Veteran claims that he is entitled to service connection for a heart disability. In numerous statements submitted in support of his claim, the Veteran asserted that his heart disability began during his second period of active duty service and that it was asymptomatic at the time of onset. He has also claimed in numerous statements that had he been treated for his claimed pre-hypertensive disorder in service, he would not have developed a heart condition. In a statement received in May 2012, the Veteran suggested that the blocked blood vessels in his heart may be related to his service-connected peripheral neuropathy of the lower extremities disability. As an initial matter, the service connection has been established for peripheral neuropathy of the left and right legs effective from December 23, 2003. Service connection for hypertension has been denied in the above decision. The medical evidence of record reveals a diagnosis of coronary artery disease as early as August 1996. When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In addition to the criteria for direct service connection explained above, secondary service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury or when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected disorder. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has not been notified of the information and evidence not of record that is necessary to substantiate his claim for service-connection for a heart disability on a secondary basis, as required by the VCAA. Moreover, his claim for secondary service connection has not been addressed by the RO in the first instance. Thus, his claim must be remanded so that the Veteran may be provided with VCAA notice and his claim for service connection on a secondary basis may be first adjudicated by the RO/AMC. Additionally, a remand is warranted so that the Veteran may be afforded a medical examination with respect to his claim. The Board notes that the Veteran underwent VA examinations and/or medical opinions were obtained regarding his claim in December 2005, June 2006 and July 2009. Both the June 2006 and July 2009 addendum and examination reports reveal opinions against the claim for service connection on a direct basis. However, none of the VA examination reports of record include a medical opinion regarding whether the Veteran's claimed heart disability was caused or aggravated by a service-connected disability. As such, the current medical evidence is inadequate, and remand for an additional medical opinion is required. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Veteran must be afforded a new examination with regards to his claimed heart disability. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Provide the Veteran with all required notice with regards to his claim for service connection for a heart disability as secondary to his service-connected peripheral neuropathy of the lower extremities. 2. Undertake appropriate development to obtain any outstanding VA medical and private medical records relevant to the Veteran's claim. 3. After obtaining all outstanding records, afford the Veteran an examination by a physician with sufficient expertise to determine the etiology of his claimed heart disability. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. The examiner must render an opinion as to whether there is a 50 percent or better probability that the Veteran's currently diagnosed coronary artery disease was caused or permanently worsened by service-connected disability, to include his service-connected peripheral neuropathy of the lower extremities. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any requested opinion, he or she should explain why. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the claim considering all the evidence of record and all relevant theories of entitlement, to include secondary service connection. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be provided the requisite opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all (CONTINUED ON NEXT PAGE) claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs