Citation Nr: 1323762 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 06-20 516 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to August 1970 and from July 2003 to January 2005. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for hypertension. In May 2008, September 2009, February 2011, and July 2012, the Board remanded the claim for additional development. In April 2013, the Board obtained a Veterans Health Administration (VHA) opinion in connection with the appeal. The Board thereafter provided the Veteran with a copy of the VHA opinion and an opportunity to respond. FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran's hypertension is not related to the Veteran's first period of active duty service and it did not manifest itself to a compensable degree within one year after this service. 2. Hypertension was noted at the Veteran's entry onto his second period of active duty service, and was not worsened during service beyond normal progression. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, appropriate information was provided in a VCAA notice form provided with his application, and which he acknowledged by signing the form in November 2004. Additional information was provided in a March 2006 letter and an October 2008 letter, to include how disability evaluations and effective dates are assigned. Cumulatively, the notice addressed what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The case was last adjudicated in January 2013. As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence. In this regard, the record includes service treatment records from both periods of service and VA examination reports and opinions. The Board also notes that actions requested in the prior remands have been undertaken. Indeed, corrective VCAA notice was provided as requested and VA medical opinions were obtained. The Veteran was asked to submit an authorization form to permit VA to obtain relevant private records in October 2008, but the Veteran responded that he had no further evidence to submit. Moreover, service treatment records from his first period of service were obtained and his first period of service was verified. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran, a physician, contends that his hypertension was aggravated by his second period of active duty service. Specifically, he claims that the findings of calcifications on coronary testing in December 2004 establish aggravation of his hypertension during his second period of active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). If a pre-existing disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case 38 U.S.C.A. § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153 (West 2002); see also 38 C.F.R. § 3.306 (2012); Jensen, 19 F.3d at 1417. A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. In this regard, a temporary or intermittent flare-up of a preexisting disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). As an initial matter, the evidence does not show and the Veteran does not contend that he suffered from hypertension during his first period of service or within one year following discharge from his first period of service. The Board notes that his service treatment records from this first period of service document an elevated blood pressure reading of 150/90 at the time of a September 1966 pre-entry examination, but are otherwise negative for elevated blood pressure readings, or symptoms or diagnosis of hypertension. On separation examination, his blood pressure was 124/70. Likewise, the post-service record does not show that hypertension manifest to a compensable degree within one year of his separation from his first period of active duty service. Accordingly, the Board finds that service connection for hypertension based on his first period of service is denied. Turning to the Veteran's claim that his hypertension was aggravated by his second period of active duty, the Board notes that at his October 2002 entrance examination he had blood pressure readings of 170/98, 163/96, and 154/94. The examiner noted the Veteran's hypertension and indicated it was controlled with medication. The Veteran was granted a waiver to enter service. Thus, the Veteran's hypertension was "noted" on his entrance to active duty in July 2003 and the presumption of soundness does not attach. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Therefore, the remaining question before the Board is whether his pre-existed hypertension was aggravated by his second period of service. In this regard, following his entrance into his second period of active duty service, a September 2003 service treatment records showed blood pressure readings of 123/83, 156/95, and 156/98. It was also noted at this time that his hypertension was stable. The Veteran reported that his home blood pressure readings were between 120 to 130 systolic over 79 to 90 diastolic. A February 2004 fitness assessment indicated that the Veteran's blood pressure on that occasion was 134/84. A June 2004 service treatment record noted that the Veteran's blood pressure on that occasion was 155/91. September 2004 service treatment records indicated the Veteran's hypertension was stable and well controlled with his blood pressure 168/96, 130/86, and 169/90. The December 2004 stress test revealed a resting blood pressure of 132/79; exercise blood pressure peaked at 182/88; and additional testing at that time revealed calcium in the coronary arteries. The January 2005 separation examination noted that the Veteran's history of hypertension and noted it increased since being in the military. He was noted to be on Lisinopril. A blood pressure reading of 133/91 was noted. In March 2009, the Veteran underwent a VA examination. On physical examination the Veteran's sitting blood pressure was 180/90 in the right arm; supine blood pressure in the right arm was 162/94; and supine blood pressure in the left arm was 155/90. The examiner diagnosed hypertension, on treatment. He concluded that the Veteran's blood pressure "did not increase significantly in the military service." The examiner also noted that during military service the Veteran's hypertension medication was changed and the dose was increased for unclear reasons. In February 2011, the Board remanded the appeal for clarification of the March 2009 examination. In a March 2011 addendum, the examiner wrote "[f]rom blood pressure measurements obtained, there appears to be worsening of hypertension in the military service." The examiner also opined that there was no evidence that increased blood pressure during military service aggravated coronary artery disease beyond its normal course, as recorded blood pressures were all within normal range. In July 2012, the Board remanded the appeal again to obtain further clarification as because the opinion was internally inconsistent, noting there was a worsening of hypertension, but then suggesting that the blood pressures were all within normal range. In August 2012, another addendum was produced. In pertinent part, the examiner reported that there was a typographical error in his March 2011 addendum and at that time he intended to opine that from blood pressure measurements obtained there appears to be no worsening of the Veteran's hypertension during his second period of active duty service. The examiner also opined that, because the Veteran's blood pressure readings prior to his second period of active duty service were elevated even with treatment and because his recorded blood pressure readings during his second period of active duty service were all within normal limits, there was no evidence of worsening of blood pressure during his second period of active duty service. In March 2013, the Board requested a VHA opinion because the August 2012 addendum did not address the Veteran's contention that the findings of calcifications on coronary testing in December 2004 establish aggravation of his hypertension. In the April 2013 VHA opinion, the physician reviewed the claims file and specifically noted relevant evidence in the claims file. The physician noted the Veteran was hypertensive during his entrance onto his second period of active duty service and received a medical waiver; therefore his hypertension was a pre-existing condition. The physician further noted that an in-service examination in September 2004 included the opinion that the Veteran's hypertension was stable and well controlled with his blood pressure 130/86 and 169/90. He noted the December 2004 stress test revealed a resting blood pressure of 132/79; exercise blood pressure peaked at 182/88 which the VHA physician opined was a normal response to exercise; and additional testing at that time revealed calcium in the coronary arteries. He further noted that while an in-service examination in January 2005 noted that the Veteran's hypertension had increased since being in the military, the claimant's recorded blood pressure at this time was normal. The VHA physician also reported that he ". . . could speculate that the statement was the result of the need for increasing the dose of the medications, which is a common need during the normal course of the disease, but the record does not support my speculation." The April 2013 VHA physician thereafter concluded as follows: (1) there is no evidence in the record that there was acceleration in the natural progression of hypertension due to the Veteran's second period of active duty service; (2) the claimant's hypertension was well controlled during his second period of active duty service; (3) well controlled hypertension is a minor risk factor in coronary artery disease and the presence of coronary artery disease, which has multiple risk factors, cannot be held as evidence of acceleration of hypertension; and (4) the presence of coronary artery disease (as evidence by the calcification documented by the December 2004 coronary tests) does not indicate the acceleration of hypertension due to the Veteran's second period of active duty service and there is no evidence of acceleration of hypertension due to the claimant's second period of active duty service in the records. As noted above, the Veteran is a physician and the Board has considered his medical opinion that his hypertension worsened during his second period of service and that the calcification documented in December 2004 supports that conclusion. Nonetheless, the Board finds the medical opinion provided by the VHA physician in April 2013 to be more probative of the question at hand. Initially, the Board notes that the Veteran did not address whether his alleged worsening was merely a temporary exacerbation of hypertension or whether the claimed worsening was the result of normal progression of the disease. As noted above, a pre-existing disease will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Moreover, the Veteran's blood pressure readings at entrance of 170/98, 163/96, and 154/94 are higher than on his separation examination, which showed a blood pressure of 133/91. If a pre-existing disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon, 8 Vet. App. 529. The Veteran did not address such points when opining that his hypertension worsened during service. Moreover, he did not provide a rationale for the contention that the calcifications noted on December 2004 coronary testing established aggravation of his hypertension. Accordingly, his opinions are entitled to less probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). On the other hand, the April 2013 physician, after citation to the relevant evidence found in the record, opined that the presence of coronary artery disease (as evidence by the calcification documented by the December 2004 coronary tests) does not indicate the acceleration of hypertension due to the Veteran's second period of active duty service. The physician explained that coronary artery disease has many risk factors, and the presence of such does not indicate an acceleration of hypertension occurred. Moreover, the VHA physician opined that the Veteran's hypertension was not worsened during military service, as evidence by the findings in service that the hypertension was stable during that time. Such conclusion is consistent with the findings noted above that his blood pressure was actually better on separation examination than on entrance examination. Similarly, the August 2012 addendum supported its opinion that there was no worsening of the Veteran's hypertension during his second period of active duty service with specific reference to the service treatment records. Accordingly, the Board accords greatest probative weight to the VHA opinion, as this opinion is supported by the evidence of record, included adequate rationale for the conclusions, and is consistent with other VA medical opinions of record. Additionally, while not dispositive, the Veteran's personal interest in this case lessens the persuasive value of his medical opinions concerning his own personal health matters. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran's hypertension was not aggravated by his second period of active duty service. Therefore, entitlement to service connection for hypertension is denied. The Board has also considered the doctrine of reasonable doubt. However, as the most competent and credible evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs