Citation Nr: 1324122 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-11 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Edward M. Farmer, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2009, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of the hearing is associated with the claims folder. In April 2012, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. After completing additional development, the AMC continued to deny the claim (as reflected in an April 2013 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. The Board notes that recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder in April 2013 and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The preponderance of the competent medical and other evidence of record reflects that the Veteran did not exhibit hypertension in service or to a compensable degree within one year after discharge from service, and hypertension is not otherwise shown to be associated with service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in August 2006 of VA's duty to assist him in substantiating his claim and the effect of this duty upon his claim. This letter also informed him of how disability ratings and effective dates are assigned. Dingess, 19 Vet. App. at 484. Because the letter addressed all notice elements and predated the initial adjudication by the AOJ in February 2007, nothing more is required. Thus, the Board concludes that all required notice has been given to the Veteran. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds that VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. It appears that the Veteran's original VA claims file has been lost, and the current file is a "rebuilt" one. See February 2007 VA Memorandum. The Board has reviewed both the Veteran's rebuilt physical claims file and the file on the Virtual VA electronic file system, to ensure a total review of the available evidence. The Veteran's service treatment records and pertinent post-service treatment reports, including those from the Social Security Administration (SSA), are of record. The Veteran has also submitted personal statements, attorney argument, and provided testimony at the 2009 hearing. Pursuant to the Board's April 2012 remand, the AMC/RO asked the Veteran to provide the names and addresses of all medical care providers, VA and non-VA that treated him for his claimed hypertension for the time period from October 1983 to the present. See VA Correspondence dated June 2012. He did not respond. No additional evidence, which had not already been identified, could be obtained. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "the duty to assist is not always a one-way street" and that a veteran cannot wait passively for help where he or she has the information essential to obtaining the evidence"). The Board notes that in January 2013, the AMC/RO made an unsuccessful attempt to obtain clinical records from the Kata Army Hospital in Germany. A memorandum of unavailability documenting all efforts at obtaining this evidence was completed and is included in the record. The Veteran was provided proper notice of the inability to obtain the records, in accordance with 38 C.F.R. § 3.159(e). A VA examination was conducted in February 2013 to assist in determining whether the Veteran's hypertension is attributable to his military service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA examination is more than adequate, as it reflects a full review of all medical and other evidence of record, is supported by sufficient detail, and refers to specific documents and medical history as well as the Veteran's service history to support the conclusions reached. There is also no medical evidence of record that suggests a nexus between any currently diagnosed hypertension and his military service; nor has the Veteran provided credible evidence of continuity of symptomatology since separation from service. Accordingly, there is no basis to conclude that the VA medical opinion is inadequate, or that a remand for a new examination is required. Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The Veteran seeks service connection for hypertension which he contends had its onset during military service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: "(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 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Certain chronic diseases, such as hypertension, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 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. 38 C.F.R. § 3.303(a). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). During his 2009 Board hearing the Veteran testified that he had received treatment for high blood pressure at an Army hospital while stationed in Germany in 1982. He also testified that he was diagnosed with hypertension about a month or two after service discharge in 1983 and that he was denied enlistment for a second period of service in 1987 due to his hypertension. See September 2009 hearing transcript (Tr.) at pages 3-6. For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Multiple blood pressure readings are required to confirm the diagnosis of hypertension with 2 or more readings on at least 3 different days. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note 1 (2012). With this in mind, the available service treatment records include a September 1982 service health record showing a blood pressure reading of 130/89. This particular reading was not sufficiently high to require treatment, or to result in a diagnosis of hypertension. Moreover, the remaining records fail to reveal any other evidence of elevated blood pressure readings or other indicia of hypertension. At service discharge, the Veteran was given the opportunity to identify any history or symptoms associated with the 1982 blood pressure reading, but declined a physical examination. There are also no medical records immediately subsequent to service contain diagnoses of hypertension. Although the Veteran has reported receiving a diagnosis of hypertension in 1983, those records are unavailable. However, he did submit a March 1987 Army recruiter's processing report, which included the notation that he had elevated blood pressure, but no accompanying clinical findings. The earliest notation in the medical records of a diagnosis of high blood pressure (hypertension) is a June 1999 VA outpatient treatment record. At that time, the Veteran had blood pressure readings of 150/100 and 143/103 and was started on ACE inhibitors. More recently the Veteran's attorney, citing to reports from the Joint National Committee on Prevention, Detection, Evaluation, and Treatment of High Blood Pressure (JNC), argues that the in-service blood pressure reading of 130/89 would be classified as prehypertension in 2003 or as high normal blood pressure in 1980. He noted that people with prehypertension were more likely to develop high blood pressure. See Attorney Correspondence dated March 7, 2012. Pursuant to the Board's April 2012 remand, copies of both the JNC-2 (dated in 1980) and the JNC-7 (dated in 2003) were added to the claims file. The Board's review of the JNC-7 report shows the introduction of a new classification that included the term "prehypertension" for those with systolic blood pressures ranging from 120 to 139 mmHg. or diastolic blood pressure readings of 80 to 90 mmHg., or both. It was specifically noted that "prehypertension was not considered a disease category but, rather, intended to identify those individuals in whom early intervention by adoption of healthy lifestyles could reduce blood pressure, decreased the rate of progression of blood pressure to hypertensive levels with age, or prevent hypertension entirely. Further review of the JNC-7 indicates the standard for hypertension as 140/90 and that a diagnosis of hypertension is based upon the average of two or more properly measured, seated, readings on each of two or more visits. In February 2013, the Veteran underwent a VA examination for the specific purpose of obtaining an opinion as to whether or not his hypertension was associated in any way to his period of service. Following a review of the claims folder, including the service treatment records, post-service clinical records, the JNC reports, and an examination and interview of the Veteran, the examiner concluded that the Veteran's hypertension was less likely than not (less than 50 percent probability) incurred in or caused by military service. The examiner noted that during service the Veteran was found to have an isolated blood pressure reading of 130/89 in September 1982. As for a blood pressure reading of 120/92 in June 1983, the examiner explained that the Veteran had been ill at that time and that the blood pressures could not serve as accurate measure of hypertension and prehypertension. The examiner also noted that a diagnosis of prehypertension requires an average of 2 or more blood pressure readings as blood pressure tends to fluctuate. Such meant that there was no documentation to support a diagnosis of prehypertension or hypertension. The examiner also noted that there was no post-service documentation to establish the chronicity of the claimed hypertension or prehypertension condition. Although the Veteran's records support the diagnosis of hypertension in 2000, due to a lack of documentation immediately post service it was not possible to establish the chronicity of this condition. Thus it is less likely than not that any diagnosed hypertension is casually related to the Veteran's period of active service, to include any documented in-service treatment for prehypertension, high blood pressure, or hypertension. Based on the foregoing, the Board is unable to attribute the Veteran's hypertension to his military service. The service treatment records do not show an actual diagnosis of hypertension. The fact that he had an elevated blood pressure reading during service is acknowledged. However, that single reading, without others, does not meet the standard for hypertension. There is also a protracted period of several years after service discharge in which there is no evidence of hypertension findings or complaints. The interval between separation from service and the first post-service indication of high blood pressure fails to satisfy the continuity of symptomatology required to support the claim for entitlement to service connection for hypertension. There is simply no corroborative evidence on file, establishing that the Veteran sought or required treatment or evaluation for symptoms suggestive of hypertension in the immediate years after his service had ended consistent with 38 C.F.R. § 3.303(b). Consideration is given to the Veteran's assertion of experiencing continuous problems since service. However, the fact that no actual hypertension was identified prior to 1999, despite his complaints, diminishes the probative value of this assertion. Also, because the earliest recorded medical history places the presence of elevated blood pressure 16 years after service separation in 1983, it is impossible to grant service connection on the basis of the manifestation of a chronic disability (e.g., hypertension) within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309. Other evidence of record contains a clinical reference to elevated blood pressure since 1987 yet, even that date leaves a 4-year gap between service and the initial findings or complaints. Although not a dispositive factor, the lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the Board finds the 2013 VA opinion is highly probative as it is based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. The VA examiner considered the Veteran's history of elevated blood pressure (both in-service and post-service), the results of the personal clinical evaluation, the relevant history as contained in medical records from service onward, and discussed the Veteran's symptoms in the context of that history. Thus he had had sufficient facts and data before him. He also referred to specific documents and medical literature to support his conclusions. As a result, he was able to address fully the salient question as to the origin of the Veteran's current hypertension and its relationship to military service. Moreover, the claims folder contains no competent medical evidence refuting this opinion. The Board acknowledges the Veteran's contention that he developed hypertension during service. However as has been discussed herein, service treatment records were negative for complaints of, treatment for, or findings of hypertension and the Veteran declined a separation examination. The preponderance of the evidence is also against a finding of a continuity of symptomatology which might show a connection between the Veteran's current hypertension and his period of service. The only medical evidence addressing the nexus requirement is the 2013 VA medical report in which the examiner disputed the notion that hypertension is coincident with the Veteran's military service. Therefore, after weighing all the evidence, the Board finds greater probative value in the 2013 VA examiner's conclusions, and, in light of the other evidence of record, that negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). In reaching this conclusion, the Board has not overlooked the Veteran's contentions, his statements to healthcare providers, or his written statements regarding his conditions. His primary assertion is that his current hypertension had its onset in service. The Board is keenly aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The United States Court of Appeals for the Federal Circuit has held, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. So, to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any particular training or acquired any medical expertise in evaluating and administering such tests or interpreting the results. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Although the Board recognizes the sincerity of the arguments advanced by the Veteran, his contentions as to the etiology/onset of his claimed hypertension are not statements merely about symptoms, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have. That is to say, hypertension is a complex disorder that requires specialized training and equipment for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology alone. So, while the Veteran is competent to say that he has experienced certain symptoms, even symptoms that often may be associated with eventual diagnosis of hypertension, he is not in turn competent to ascribe these symptoms to disability related to his military service. Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Likewise, the single competent medical opinion in the record conclusively found no etiological relationship between service and the Veteran's subsequent development of hypertension. The Veteran has not established that he has experienced continuous hypertension since his military service, only believing instead there must be some correlation between this condition and his military service - in effect, by logical deduction - because he had a single elevated reading while in service. But this inductive leap would require ignoring that the Veteran's in-service blood pressure reading did not meet the standard for hypertension and that a diagnosis of hypertension is not made on one measurement, which the VA examiner apparently considered more significant. In this case, the Veteran's opinion, to the extent it is to be accorded some probative value, is far outweighed by the more thoroughly explained and detailed opinion from the VA medical professional. Jandreau, supra & Buchanan, supra. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for hypertension is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs