Citation Nr: 1323242 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-20 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from February 1964 to December 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran has a chronic hypertension disability that began during his active service. CONCLUSION OF LAW Hypertension was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist Review of the claims folder shows compliance with the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Regardless, with regard to the hypertension issue being granted, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because, in light of the allowance of these claims, any error is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Governing Laws and Regulations for Service Connection Veterans are entitled to compensation from the VA if they develop disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(b), with an enumerated "chronic disease" (such as hypertension) shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date. 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). 38 C.F.R. § 3.303(b) also provides another route by which a Veteran can establish service connection for a chronic disease - by way of continuity of symptomatology. Continuity of symptomatology after discharge is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, i.e., "when the fact of chronicity in service is not adequately supported." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). The Federal Circuit recently held that the regulation creating a presumption of service connection for "chronic diseases" manifesting during service or within one year of service, and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker, 708 F.3d at 1336-37. In the same case, the Federal Circuit clarified that the continuity of symptomatology language in § 3.303(b) also "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Id. at 1335. With respect to the current appeal, this list includes hypertension as an enumerated "chronic disease." See 38 C.F.R. § 3.309(a). As to presumptive service connection under the one-year presumption, some diseases are chronic, per se, such as hypertension, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. The factual basis may be established by medical evidence, competent lay evidence, or both. Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. Lay evidence should describe the material and relevant facts as to the Veteran's disability observed within such period, not merely conclusions based upon opinion. The chronicity and continuity factors outlined in § 3.303(b) will be considered. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. It also includes 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Service Connection for Hypertension The Veteran dates the onset of his hypertension disorder to the time of his service. He maintains he was diagnosed with hypertension for the first time at separation from service in December 1967. At that time, he exhibited a high blood pressure reading. He reports being treated by a private physician and prescribed medication for hypertension in 1968 within one year of service, but no medical records are available as the physicians who treated him died. He believes that he developed hypertension during service due to the high stress environment to which he was subject to as an electrician aboard the USS Hyades. He says the ship would frequently break down, requiring constant repairs, and would become stranded in the middle of the ocean. He adds that his hypertension could have been caused from exposure to Agent Orange or other toxic herbicide agent that was stored and shipped aboard the USS Hyades. See March 2008, July 2009, August 2009, and November 2009 Veteran's statements; December 2008 Notice of Disagreement (NOD); June 2009 VA Form 9. Upon review of the evidence of record, the Board grants the appeal for service connection for hypertension. As mentioned, the first and most fundamental requirement for any service-connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. In this regard, a June 2008 VA hypertension examiner noted current "essential hypertension." The Veteran is prescribed several hypertension medications to control his high blood pressure. Moreover, private treatment records dated in the 1990s and 2000s also reveal treatment for hypertension. Thus, the Veteran has a current hypertension diagnosis. Consequently, the determinative issue is whether the Veteran's hypertension is attributable to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). With regard to direct service connection, service treatment records (STRs) are negative for any complaints, treatment, or diagnoses of hypertension until the Veteran's December 1967 discharge examination. Specifically, the December 1967 discharge examination revealed an elevated blood pressure reading of 154/100. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (the term hypertension means that the diastolic blood pressure (i.e., bottom number) is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure (i.e., top number) is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm). Most importantly, the Veteran signed a typed statement in which he acknowledged that he was found to have hypertension, which had not been noted on previous STR examinations. The Veteran refused further evaluation for his hypertension as it could delay his discharge date. When the disease identity for a chronic disease is established there is no requirement of evidentiary showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). Post-service, the Veteran and his spouse have reported that he was treated by a private physician and prescribed medication for hypertension in 1968 within one year of service, but no medical records are available as the physicians who treated him have died. However, an employee of one of the private physicians who treated the Veteran, J.E., submitted a June 2009 lay statement corroborating that the Veteran was being treated for high blood pressure in the early 1970s. In any event, the Veteran and his spouse and J.E. are competent and credible to report the Veteran's observable treatment for hypertension immediately after service. Barr, 21 Vet. App. at, 307-09. Indeed, lay testimony regarding what a medical professional tells a lay person is specifically listed as one of the examples given as competent lay testimony. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Private treatment records beginning in 1995 reveal "a history" of hypertension. The Veteran also underwent triple bypass heart surgery for coronary artery disease. In summary, the Veteran's complaints and treatment in service and immediately post-service reflect more than an "isolated" finding of hypertension, thereby revealing a chronic condition requiring repeated treatment. 38 C.F.R. § 3.303(b). Under the plain language of § 3.303(b), the Federal Circuit has held that there is a presumption of service connection for a chronic disease (rebuttable only by "clearly attributable intercurrent causes"), which manifests during service and then again "at any later date, however remote." Groves, 524 F.3d at 1309. The Veteran is competent to report symptoms and treatment for hypertension during and after his military service. Jandreau, 492 F.3d at 1377. See also 38 C.F.R. § 3.159(a)(2). The Board finds he and his spouse are also credible in their assertions regarding immediate post-service treatment for hypertension. Furthermore, post-service, with regard to an alternative means of establishing service connection by way of continuity of symptomatology, the post-service treatment for the Veteran's hypertension is sufficiently similar and close in time to his documented in-service treatment to demonstrate continuity, which would be adequate to award service connection for hypertension, to the extent an argument can be made that chronicity is not adequately supported. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at1339-40. The Veteran's lay submissions, supported by certain medical evidence of record, would be credible for purposes of establishing continuity of symptomatology for hypertension. Barr, 21 Vet. App. at 310. With regard to a nexus, the Board acknowledges that a June 2008 VA hypertension examiner opined that he could not resolve the issue of whether the Veteran's single high blood pressure reading at separation was indicative of in-service hypertension "without resort to mere speculation." The VA examiner explained that STRs provided no other documentation of high blood pressure readings, there was no post-service diagnosis of hypertension in the claims folder until 1995, and a diagnosis of hypertension requires more than an elevated single high blood pressure reading. The VA examiner failed to address why military medical personnel in December 1967 specifically "found" the Veteran to have hypertension. The Board can rely on an examiner's conclusion that an etiology opinion would be speculative, as long as the examiner explains the basis for such an opinion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). An equivocal medical opinion may still be competent, and cannot be considered "non-evidence." Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008). But an etiological opinion should be viewed in its full context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). The Court has pointed out that an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In summary, despite this speculative medical opinion, the other probative lay and medical evidence of record sufficiently demonstrates a chronic hypertension disease both in-service and post-service. The Board is mindful that medical nexus evidence is not required to establish service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, and that he or she still has the same chronic condition, such as the case here. Groves, 524 F.3d at 1309-1310. Accordingly, the evidence supports service connection for hypertension. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hypertension is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs