Citation Nr: 1322156	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  09-46 781A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for hypertension on a direct service connection basis.

2. Entitlement to service connection for hypertension on a secondary service connection basis.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Mac, Counsel


INTRODUCTION

The Veteran served on active duty, to include the period from November 1965 to August 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for hypertension on a direct basis.  The Veteran appealed that decision to the Board. 

The evidence in the claims folder raises the issue of whether hypertension is secondary to a service-connected disease or injury.  

The Board has bifurcated the claim on appeal because additional development proposed in the remand may affect the outcome of the claim on a secondary service connection basis; however, such development is not expected to affect the claim on a direct service connection basis.  Bifurcation of a claim generally is within the Secretary's discretion.  See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for the Secretary to bifurcate a request for benefits on the basis of direct service connection from the request on the basis of presumptive service connection), aff'd 631 F.3d 1380 (Fed. Cir. 2011). 

A review of the Virtual VA paperless claims processing system includes VA treatment records available in CAPRI, which are dated from July 2009 to November 2011 and are cumulative or duplicative of the evidence in the claims folder.  Other documents in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal.  

The issue of service connection for hypertension as secondary to a service-connected disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Hypertension did not manifest during service or within one year after service, and the current hypertension is unrelated to service.  


CONCLUSION OF LAW

Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The RO provided a pre-adjudication VCAA notice by letter dated in December 2008.  The Veteran was notified of the evidence needed to substantiate the claim for service connection on a direct basis as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim.  

Duty to Assist

VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim.  Service treatment records, post-service treatment records, and lay statements have been associated with the record.  In his claim received in August 2008, the Veteran indicated that he was treated by Dr. H. for hypertension.  In December 2011, the RO sent a letter to the Veteran asking for written authorization to obtain treatment records from Dr. H., however the Veteran has not sent such authorization.  In December 2011, the Social Security Administration confirmed that they did not have the Veteran's medical records.  

The Board notes that the Veteran's representative in May 2013 stated that the Veteran was afforded a VA examination whereby the examiner did not provide a rationale for the opinion that hypertension was noted related to service or manifested within one year of separation from service.  However, such an opinion is not of record as the claims folder and Virtual VA does not include a VA opinion which concludes that hypertension was not related to service.  Moreover, the record does not indicate that hypertension may be associated with the Veteran's service on a direct basis as there is no probative evidence of recurrent symptoms or continuity of symptomatology since service or other possible association with service.  For these reasons, a VA medical opinion is not necessary to decide the claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C).  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Thus, with respect to the Veteran's claim, there is no additional evidence which needs to be obtained.  

Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service.  38 U.S.C.A. § 1110.  

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for chronic disease such as hypertension, if the disability is 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.

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the 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 after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).  

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Analysis

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. 

As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy.  Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) are not applicable.

VA regulations provide that 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.  Hypertension must be confirmed by readings taken two or more times on at least three different days.  See 38 C.F.R. 
§ 4.104, Diagnostic Code 7101, Note (1).

In February 2009, the Veteran stated that he had problems with blood pressure in service.  In May 2013, the Veteran's representative reiterated that the Veteran continued to contend that hypertension initially developed during active duty.

Service treatment records show that on entrance examination in August 1965, the Veteran's blood pressure was 138/88.  On separation examination in August 1968, his blood pressure was 134/78.  His heart and vascular system were evaluated as normal.  

After service, VA treatment records from June 2009 onward show an assessment of hypertension.  The Veteran's private doctor, Dr. C., in December 2009 noted that the Veteran had a history of uncontrolled hypertension.  On VA examination in January 2011, the examiner noted that continuous medication was required to control hypertension.  On VA examination in October 2011, the Veteran had the following blood pressure readings: lying 153/82, sitting 158/59, and standing 168/80.  

Here, the service treatment records show that the Veteran's blood pressure readings in service were inconsistent with a hypertensive disability as defined by regulation 38 C.F.R. § 4.104.  The evidence shows a history of hypertension in 2009.  As for the Veteran's statements that he had hypertension since service, the Board finds his statements not to be credible as they are inconsistent with his August 1968 Report of Medical History upon separation from service whereby he denied having high or low blood pressure.  The normal in-service findings, the denial of high blood pressure at separation and the fact that hypertension was not identified until many years after service, warrants the conclusion that hypertension did not manifest in service or for many years thereafter.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue).  It also follows that hypertension did not manifest within the one year presumptive period after service.  Thus, there is no basis for a finding of continuity of symptomatology.  As discussed earlier, the evidence is inadequate to warrant an examination or a medical opinion. 

In general, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology).  The Board has carefully considered the Veteran's lay assertions in this regard.  The Board acknowledges that a layman is competent to report what he or she experiences through one of the senses.  See Layno v. Brown, 6 Vet. App 465, 470 (1994).  The Board finds that there is no probative evidence in the record suggesting that hypertension is related to service on a direct basis.  As discussed earlier the Board does not find the Veteran's statements regarding the onset of his hypertension to be credible.  

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, the preponderance of the evidence is against the claim, and the claim must be denied.  See 38 U.S.C.A. 
§ 5107(b); see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).
Service connection on a direct basis for hypertension is denied.


ORDER

Service connection on a direct basis for hypertension is denied.



REMAND

As discussed above, the Veteran is service connected for adenocarcinoma of the prostate.  In August 2010, the Veteran's private doctor, Dr. C., was of the opinion that the psychological and physical stress and treatment for prostate cancer has exacerbated his hypertension.  As the evidence suggests that hypertension may have been aggravated by the Veteran's service-connected prostate cancer, he should be afforded a VA examination to determine whether hypertension is secondary to his service-connected prostate cancer.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Accordingly, the case is REMANDED for the following action:

1. Ensure VCAA compliance on the claim of entitlement to service connection for hypertension as secondary to a service-connected disability.

2. Schedule the Veteran for a VA examination to determine whether hypertension is secondary to the service-connected prostate cancer.  

The examiner must address the following question:

Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's hypertension is caused or aggravated by the service-connected prostate cancer? 

* If it is found that the hypertension is aggravated by the service-connected disability, the examiner should identify the baseline level of severity prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. 

The examiner is asked to consider the following: the Veteran's private doctor in December 2009 stated that he was diagnosed with prostate cancer in 2008 and had chronic hypertension.  

The examiner is asked to provide a rationale for the opinions rendered.  If the examiner is not able to provide an opinion, he or she should explain why.

3. Then re-adjudicate the claim of service connection for hypertension as secondary to the service-connected prostate cancer.  If the benefit remaining on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case.  They should then be given a reasonable time frame within which to respond.  Then, the case should be returned to the Board for further appellate review.  

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


This claim must be afforded expeditious treatment.  The law requires that all 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).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs