Citation Nr: 1323633 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 06-14 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a heart condition, to include cardiomyopathy and congestive heart failure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to February 1994. He had also had periods of active duty training and inactive duty training with the National Guard/Reserve. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO in Winston-Salem, North Carolina. In May 2007, the Veteran withdrew his request for a Videoconference hearing. See 38 C.F.R. § 20.704(e) (2012). In June 2010, the Board denied entitlement to service connection for hypertension and congestive heart failure. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2011 Memorandum Decision, the Court vacated the Board's June 2010 decision with respect to both issues, and remanded the claims for additional development pursuant to the directives of the December 2011 Memorandum Decision. In June 2012, the Board, in turn, remanded the claims for additional development. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. FINDINGS OF FACT 1. The Veteran's hypertension did not manifest during active service, was not compensably disabling within one year of separation from active service, and is unrelated to active service. 2. The Veteran's heart condition, to include cardiomyopathy and congestive heart failure, did not manifest during active service, was not compensably disabling within one year of separation from active service, and is unrelated to active service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service, nor may a it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. A heart condition, to include cardiomyopathy and congestive heart failure, was not incurred in or aggravated by active service, nor may a it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in December 2004 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain. In March 2006, VA notified him of how disability ratings and effective dates are determined. The claims were most recently readjudicated in a June 2013 supplemental statement of the case. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations and obtaining medical opinions. In this case, the Veteran was afforded VA examinations in July 2012. As will be discussed below, the opinions provided by the VA examiner are adequate to make a determination on the claims. In June 2012, the Board remanded the claims, in part, to obtain any outstanding service treatment records (STRs). Notably, the Veteran's STRs dating prior to September 1980 are not of record. In response to VA's request, the North Carolina National Guard provided all available records, which included a May 1972 enlistment examination, but no other STRs. The Records Management Center also indicated that it had no additional STRs. In March 2013, the Veteran was notified of VA's attempts to obtain all outstanding STRs and informed that he could furnish documents to substitute for STRs. He responded that he had no additional records. In these circumstances, when a Veteran's STRs are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993). See also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (benefit of the doubt doctrine requires that, as to any point, VA resolve the doubt created by an approximate balance of positive and negative evidence in favor of the Veteran). As the RO took efforts to verify the Veteran's service, to obtain all outstanding relevant records, and scheduled the Veteran for a VA examination, the Board finds that the RO substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Legal Criteria Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). For veterans who served for 90 days or more during a war period or after December 31, 1946, service connection may be presumed for certain chronic diseases, such as cardiovascular-renal disease, to include hypertension, if manifest to a compensable degree within one year after discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Hypertension is generally defined as diastolic pressure, which is predominantly 90 mm or greater and isolated systolic hypertension is defined as systolic blood pressure predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must generally be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. A compensable or 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominately 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. Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to the chronic disorders as listed in 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease 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). Unless otherwise noted, 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 In this case, the Veteran's primarily contention is that he had elevated blood pressure readings during active service and that chronic hypertension manifested within one year of discharge from active service. He later developed congestive heart failure, which he alleges either manifested in or is otherwise related to service. The Veteran's STRs do not reflect complaints, treatment, or diagnoses related to hypertension. His blood pressure readings were 118/74 in May 1972; 120/80 in September 1980; 122/84 in April 1982; 120/76 in January 1983; 140/72 and 120/80 in December 1985; 122/82 in January 1986; 126/80 (sitting), 110/60 (lying down), and 130/82 (standing) in July 1989; 121/69 in October 1990; 116/80, 118/72, 118/62, 110/64, 126/84 and nursing notes ranging from 116-138/76-96 in November 1990; 139/87 in July 1992; and 128/84 in December 1992. At a January 1985 flight physical, the Veteran's heart and vascular system were clinically normal; a chest X-ray and electrocardiogram (ECG) were normal. His blood pressure was 120/78 and he denied a history of high or low blood pressure. A January 1989 ECG indicated normal sinus rhythm; however a hand-written note reads "early R load progression ... check lead placement ... probably normal ECG". The Veteran's February 1994 retirement examination reflects that his heart and vascular system were clinically normal. His blood pressure was 135/80 and he denied a history of high or low blood pressure. A chest X-ray revealed no active disease. An ECG revealed normal sinus rhythm and rate. Left atrial enlargement and left ventricular hypertrophy were noted; however, a hand-written note indicates that left ventricular hypertrophy was "fine" and a "normal variant." Private treatment records from New Hanover Regional Medical Center reflect that the Veteran was seen in May 1994 for difficulty breathing. It was noted he had a 20-year history of drinking alcohol. His blood pressure was 140/90; his heart had regular rhythm without murmurs, rubs, or gallops. An ECG showed early repolarization but was otherwise unremarkable; left ventricular hypertrophy was noted by voltage but interpreted to be normal for his age. A chest X-ray was unremarkable. The assessment was that shortness of breath was possibly secondary to situational anxiety from a death in his family. In July 1994, the Veteran was admitted New Hanover Regional Medical Center (New Hanover) after a closed head injury sustained while riding a horse. It was noted on the discharge report that his blood pressure had been in the 120/80 range, 140/70. Treatment records reflect blood pressure readings were 120/80, 139/90, 148/73, 146/77, 132/66, and 149/88. Chest X-rays were normal. In August 1994, the Veteran was transferred to Cape Fear Valley Medical Center (Cape Fear) for rehabilitation. At the time of admission, it was noted that he had some difficulties with his blood pressure during hospitalization at New Hanover, which was controlled by Procardia. A discharge summary reflects that the Veteran was diagnosed with hypertension and that he was continued on the same medications, including Procardia, while at Cape Fear. He was discharged in September 1994. A September 1994 physical therapy record from New Hanover reflects that the Veteran denied any medical problems and was not on any medication. A March 1998 VA general medical examination report reflects that the Veteran's blood pressure was 124/76. Hypertension was not noted. His cardiovascular system was normal. An April 1998 chest X-ray showed that heart size and mediastinal contours were within normal limits. In February 2004, private treatment records from Cape Fear reflect that the Veteran had untreated hypertension and intermittent episodes of shortness of breath over the previous month. He was referred to the emergency room and was found to be in congestive heart failure. A cardiac catherization revealed severe cardiomyopathy, mildly elevated left ventricular end diastolic pressure, and no significant coronary disease. It was noted that the most likely etiologies for non-ischemic cardiomyopathy were hypertension and alcohol. Later that month, a VA treatment record reflects that the Veteran had been recently discharged. He gave a long history of alcohol dependence and abuse, noting that he had quit drinking in November 2003. His discharge medications included Ramipril to treat hypertension. The physician indicated that he suspected the Veteran had dilated cardiomyopathy secondary to alcohol; complete abstinence was emphasized. VA and private records continue to show treatment for hypertension, cardiomyopathy, and alcohol abuse since February 2004. A January 2005 VA cardiology consultation record notes that the Veteran's cardiomyopathy was felt to be related to his alcohol usage, that he was in denial about his drinking and its cardiotoxic effects, and that he blamed his military service. It was noted that he continued to drink and that his short-term and long-term mortality would be significantly affected if he continued to do so. According to a January 2011 VA cardiology note, he quit drinking in 2006 or 2007 and was showing improvement. The report of a July 2012 VA examination reflects diagnoses of cardiomyopathy and hypertension. Regarding hypertension, the examiner opined that hypertension was "less likely than not" incurred in or caused by service. She opined that hypertension was not shown during active duty and did not manifest to a compensable degree within one year after separation. The rationale provided was that the Veteran's STRs and retirement physical did not indicate hypertension. The examiner noted that the Veteran had an episodic elevation of blood pressure after a closed head injury in 1994 and was placed on medication, but he was not prescribed any blood pressure medication for outpatient use and the records do not reflect a diagnosis or treatment of hypertension until February 2004. In rendering this opinion, the examiner reviewed and considered the Veteran's STRs and blood pressure readings. Regarding cardiomyopathy and congestive heart failure, the examiner opined that these conditions were "less likely than not" incurred in or related to service. The examiner noted that these conditions were first diagnosed in February 2004 - 10 years after service. The examiner reviewed the January 1989 ECG and noted that there many possible etiologies for poor R wave progression, but that the probable cause was due to lead placement. The examiner also reviewed the February 1994 ECG, but noted that the handwritten note indicated that the left ventricular hypertrophy was "fine" and that there was no evidence of a chronic heart disease in service or for years thereafter. Likewise, the May 1994 ECG was interpreted as within normal limits for the Veteran's age. The examiner also emphasized that private and VA healthcare providers felt that the cause of his cardiomyopathy was alcohol abuse. Finally, after reviewing the medical literature, the examiner opined that the Veteran's congestive heart failure was not aggravated or caused by his service-connected disabilities. In this case, the evidence preponderates against finding that the Veteran's hypertension and cardiomyopathy/congestive heart failure manifested in service. His diastolic blood pressure was not predominately 90 mm or greater and his systolic blood pressure was not predominately 160 mm or greater. Hypertension was not diagnosed or noted in service and he denied having high or low blood pressure. Similarly, no cardiomyopathy or other heart condition was diagnosed in service. As noted by the Court in its December 2011 Memorandum Decision, some of the Veteran's blood pressure readings were in the "prehypertension" range; however, the July 2012 VA examiner reviewed his STRs and opined that hypertension did not manifest in service. She also reviewed and addressed the ECG findings and concluded that cardiomyopathy or other heart condition did not manifest in service. She provided rationale for her opinions and there is no medical opinion to the contrary. The evidence also preponderates against finding that the Veteran's hypertension and cardiomyopathy manifested to a compensable degree within one year of separation from active service. Although hypertension was noted during the Veteran's hospitalization at New Hanover and he was treated with medication, there was no follow-up treatment. After he was discharged in September 1994, he denied having any medical problems and reported that he was not on medication. This evidence supports the July 2012 VA examiner's opinion that the Veteran had an "episodic" elevation in blood pressure and that hypertension did not manifest to a compensable within one year of separation from active service. Likewise, a chronic heart condition, including cardiomyopathy and congestive heart failure, did not manifest to compensable degree within one year of separation from active service. Rather, the evidence reflects that the Veteran first began having symptoms related to a heart condition in February 2004 - approximately 10 years after separation. Regarding the ECGs, the July 2012 VA examiner explained that these findings were within normal limits. Her opinion is supported by the hand-written note that left ventricular hypertrophy was "fine" and a "normal variant" and the later ECG finding that left ventricular hypertrophy was normal for a person of that age. As noted above, cardiovascular-renal disease, to include hypertension, is a chronic disease under38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b) provides another avenue for establishing service connection for chronic diseases. In cases where the condition is noted during service (or within the presumptive period) and is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, such as in this case, continuity of symptomatology is required for a finding of service connection. 38 C.F.R. § 3.303(b). In his May 2006 substantive appeal, the Veteran stated that he was treated for hypertension while on active duty and within one year of separation from active duty. He said that he was on medication to control his hypertension while on active duty, stopped taking it for a while, and the returned to taking it in 2003. In a June 2013 letter, he stated that he was treated for and given medication for hypertension within one year of separation from active duty. As a lay person, the Veteran is competent to report what he has personally experienced, including being diagnosed with hypertension and taking medication to treat it. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See 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). In this case, however, the Board finds that the contemporaneous medical evidence and the July 2012 VA examiner's opinion are more probative. The contemporaneous medical evidence completely contradicts the Veteran's allegations that he was diagnosed with hypertension and took medication while on active duty. The Board acknowledges that a portion of the Veteran's STRs are missing prior to 1980, but no history of hypertension was noted in the STRs dated after 1980. Notably, at his February 1994 retirement examination, he denied a history of high or low blood pressure. For these reasons, the Board does not find such statements credible. To the extent the Veteran alleges that he was diagnosed with and treated for hypertension within one year of separation from active service, the contemporaneous evidence supports his statements. However, the question remains whether the hypertension that was noted during the hospitalization for a head injury in 1994 was, in fact, "chronic". The July 2012 VA examiner opined that the Veteran's elevated blood pressure in 1994 was "episodic" and not "chronic." The Veteran's representative, in a July 2013 brief, argues that the examiner did not provide adequate rationale for her conclusion. In this regard, the Board notes that the contemporaneous medical evidence supports the examiner's conclusion. The Veteran was treated with Procardia while hospitalized in July 1994 and the rehabilitation facility continued with this medication until he was discharged in September 1994. After being discharged in September 1994, a physical therapy record indicates that he denied having any medical problems or being on medication. He was not treated for hypertension again until February 2004 - over 10 years later. When he was hospitalized in February 2004, he reported a one-month history of cardiac symptoms. The VA examiner reviewed, considered, and discussed the Veteran's relevant medical history in formulating her opinion. Hence, the Board finds her opinion adequate. Clearly hypertension was noted within one year of separation from active service, but the medical and lay evidence does not establish that the condition was "chronic." Furthermore, continuity of symptomatology has not been credibly established. Therefore, entitlement to service connection under 38 C.F.R. § 3.303(b) is not warranted. In sum, the evidence preponderates against finding that the Veteran's hypertension, cardiomyopathy, and congestive heart failure manifested during active service, or within one year of separation from active service. To the extent hypertension was noted within one year of separation from active service, the most probative evidence indicates that it was not chronic and continuity of symptomatology has not been credibly established. The question remains whether there is a nexus between the Veteran's current hypertension and cardiomyopathy/congestive heart failure and his active service. See 38 C.F.R. § 3.303(d). As mentioned above, the July 2012 VA examiner provided a negative nexus opinion as to whether the Veteran's current hypertension and cardiomyopathy/congestive heart failure are related to active service. As noted above, the examiner reviewed, considered, and discussed the Veteran's STRs and relevant medical history. She provided a detailed explanation for her opinions and indicated that she reviewed the medical literature. For these reasons, the Board finds that her opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The only other opinion addressing this question is that of the Veteran. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the Veteran's hypertension and cardiomyopathy/congestive heart failure, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The question of etiology in this case goes beyond a simple and immediately observable cause-and-effect relationship. Even assuming the lay assertions regarding etiology were competent, the Board finds the July 2012 VA examiner's opinion discussed in detail above is much more probative. Based upon the foregoing analysis, the Board finds that a preponderance of the evidence in this case is against the claims of entitlement to service connection for hypertension and a heart condition. 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 the claims. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a heart condition, to include cardiomyopathy and congestive heart failure, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs