Citation Nr: 1324492 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 07-23 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected gall bladder cancer. 2. Entitlement to service connection for a sleep disability, to include as secondary to service-connected gall bladder cancer, tinnitus, chronic allergic rhinitis, chronic sinusitis, and/or prostatic hypertrophy. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from May 1978 to May 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in March 2011, when the Board remanded the current issues for additional development. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. The issue of service connection for sleep apnea has been raised by the record (specifically, in a June 2013 appellant's brief), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of service connection for a sleep 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. VA will notify the Veteran if further action is required. FINDING OF FACT Hypertension was not manifested in active service or for several years after service discharge, nor is hypertension otherwise causally related to active duty service or to a service-connected disability, to include by aggravation. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran with pre-adjudication notice by letter dated in June 2005. The notification complied with Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the Veteran with additional notice which was dated in March 2006, but sent subsequent to the initial adjudication, which also complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006), identifying the five elements of a service connection claim. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim being decided, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notices. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service, VA treatment, private treatment, and Air Force Base treatment records, reviewed the Veteran's Virtual VA file, assisted the Veteran in obtaining evidence, and afforded the Veteran pertinent VA examinations in April 2006 and March 2011. All known and available records relevant to the issue being decided on appeal have been obtained and associated with the Veteran's claims file, and the Veteran and his representative have not contended otherwise. All of the relevant development requested by the Board's March 2011 remand was fully completed with regard to the issue being decided on appeal, namely, a VA examination and medical opinion, and therefore the remand orders were fully complied with. See Stegall v. West, 11 Vet. App. 268 (1998). VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim for service connection for hypertension at this time. Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). When certain chronic diseases are at issue, such as cardiovascular-renal disease, including hypertension, or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. Hypertension is a listed chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include 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 is 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. The Veteran contends that his current hypertension is related to his military service. He also contends that his current hypertension is secondary to his service-connected gall bladder cancer, as he alleges (in his May 2005 claim) that his hypertension did not occur until he started having the surgeries for his cancer. For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and 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). While the Veteran's service treatment records (STRs) do document that his diastolic blood pressure was 90mm. or greater on several occasions, his STRs also reflect that he never had blood pressure readings taken two or more times on any given day in service. His STRs do not contain any complaints, findings, diagnosis, or treatment of hypertension. Post-service treatment records include an elevated blood pressure reading of 148/90 in April 1999 (within one year of service). The Veteran was first assessed with "borderline hypertension" in a September 2002 VA treatment record (more than four years after service discharge). He was later diagnosed with hypertension in a January 2005 Air Force Base treatment record (more than six years after service discharge). In a May 2005 statement, an Air Force Base physician noted that he could not reasonably state that the Veteran had hypertension as a result of his cancer and treatment for cancer. The physician opined that, more likely, the Veteran's hypertension was due to his weight and genetics. At an April 2006 VA liver, gall bladder, and pancreas examination, the Veteran noted that he had been diagnosed with hypertension for three years, and he expressed his belief that his gall bladder cancer (definitively diagnosed in 2003) had caused him to have hypertension. The examiner opined that the Veteran's hypertension was not caused by gall bladder cancer. No rationale was provided for this opinion. At a March 2011 VA mental disorders examination, the Veteran reported that he started having problems with hypertension when in service. At a March 2011 VA general medical examination, the Veteran reported that he was diagnosed with hypertension around 1989, that he was seen a few times while in the military, and that he was started on hypertension medication which he remained on currently. The examiner diagnosed the Veteran with hypertension, and opined that such disability was not caused by or a result of the military. The examiner noted that, through review of the claims file, he was unable to verify the Veteran's contentions that he had been diagnosed with and treated for hypertension while in the military; furthermore, the examiner noted that he was unable to find serial blood pressure readings in the military sustained over 140/90 on three different occasions. In a June 2012 addendum, the March 2011 VA general medical examiner opined that the Veteran's hypertension was not caused by or incurred within one year of discharge from the military. The examiner noted that he was unable to find serial blood pressure readings within one year of discharge from the military sustained over 140/90 on three different occasions; furthermore, the examiner noted that he was unable to substantiate exactly when the Veteran was started on hypertension medication. The examiner also opined that the Veteran's hypertension was not contributed or permanently aggravated beyond natural progression by the service-related gall bladder cancer. The examiner noted that he was unable to find a clinical correlation between gall bladder cancer causing hypertension. There are no medical opinions of record to suggest a link between the Veteran's current hypertension and his active service or his service-connected gall bladder cancer. While the Veteran's diastolic blood pressure was 90mm. or greater on several occasions in service, his STRs reflect that he never had blood pressure readings taken two or more times on any given day in service, and his STRs do not contain any complaints, findings, diagnosis, or treatment of hypertension. Furthermore, the record reflects that the Veteran was not diagnosed with hypertension until several years after his discharge from service, as he was first diagnosed with borderline hypertension in September 2002 and was later diagnosed with hypertension in January 2005. Finally, the record reflects that the Veteran initially alleged (in his May 2005 claim) that his hypertension did not occur until he started having surgeries for his gall bladder cancer (which was diagnosed in 2003), but then later alleged at his March 2011 VA examinations that his hypertension and treatment for such had actually begun in service. The Board finds that the Veteran's assertions regarding his current hypertension beginning in service and continuing thereafter are simply not credible when viewed against the overall record. In May 2005 he reported that hypertension did not begin until a number of years after service, following gall bladder cancer surgery. During his March 2011 VA examination he reported that hypertension began in service. The inconsistency in his statements regarding the origin of his hypertension negatively impact his credibility with respect to his allegations of continuity. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of a veteran in weighing credibility). Further, self-interest may play a role in statements made in connection with this claim for benefits. See Pond v. West, 12 Vet. App. 24, 25 (1991). Thus, the Board finds reasons to place reduced probative value on the Veteran's contentions with respect to the origins and continuity of his hypertension. The Veteran has offered his own opinions on etiology, stating that his symptoms of hypertension began during service continued thereafter and/or were caused or aggravated by his service-connected gall bladder cancer. Again, the Board does not dispute the fact that that he had elevated blood pressure readings on isolated occasions during active service and at least once in his first post-service year. However, the preponderance of the evidence is against a finding that hypertension was incurred in service or was manifested within the first post-service year. The Board finds the most probative and persuasive evidence with respect to etiology to be the (negative) 2011 and 2012 VA medical opinions, as the examiner had the benefit of a thorough review of the entire record and explained the conclusions reached with reference to the record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion). The Veteran is competent to describe any discernible symptoms of hypertension without any specialized knowledge or training. However, the Veteran is not competent, as a layperson, to render an opinion concerning medical causation here, "where the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge," to include knowledge of cardiovascular processes. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Significantly, hypertension is not observable through the five senses as it involves a disease process internal to the body with no symptoms that are uniquely identifiable as hypertension by a lay observer. For this reason, his statements in this regard do not constitute probative evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). The overall medical record, including the highly probative VA medical opinions of 2011 and 2012, does not enable a finding of true chronicity. The fact remains that the Veteran was not diagnosed with hypertension, despite the isolated clinical findings of elevated blood pressure in service and immediately thereafter, until several years post-service. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Put another way, the medical professionals that followed the Veteran for his elevated blood pressure did not find that he met the requirements for a diagnosis of hypertension until several years after service. Further, the VA opinions in 2011 and 2012, when having the benefit of a review of the entire record, reached the same conclusion: hypertension was not shown in service and was not manifested to a compensable degree within the first post-service year. Given the absence of a diagnosis of hypertension (as defined for VA purposes) in service; the absence of manifestations of hypertension to a compensable degree within the first post-service year; the passage of several years after his service discharge before hypertension was first complained of or diagnosed in the evidence of record (and the fact that such complaints were not initially alleged to be related to his service); and the absence of any competent evidence linking any current hypertension to service or to his service-connected gall bladder cancer, the preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for hypertension is not warranted. ORDER Entitlement to service connection for hypertension is not warranted. To this extent, the appeal is denied. REMAND In March 2011, the Board instructed the RO/AMC to afford the Veteran an appropriate VA examination for the purpose of determining the nature, etiology, and severity of his sleep disability (specifically, insomnia), and the examiner was asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such began during or was caused by service, or was caused by or has been aggravated by his service-connected gall bladder cancer. Pursuant to the Board's March 2011 remand instructions, the Veteran underwent a VA general medical examination in March 2011. On that occasion, the Veteran reported that he first started having problems with insomnia around 1989, that he was seen a few times while in the military, and that he was treated with unknown sleeping pills while in the military (but did not need sleep pills after the military). He reported that he currently had to get up during the night due to sleep apnea, snoring, and nocturia (times five) for an enlarged prostate. The examiner diagnosed the Veteran with insomnia, resolved, and opined that such disability was not caused by or a result of the military. The examiner noted that the Veteran's present sleepless nights were caused by sleep apnea, snoring, and nocturia (times five) for an enlarged prostate, and that the Veteran was not presently being treated for insomnia. The examiner also noted that he was unable to find claims file evidence of sleep apnea or treatments while in the military. In a June 2012 addendum, the March 2011 VA general medical examiner opined that the term "sleepless nights" is not a clinical diagnosis, so that is why the term "insomnia" was used in the diagnosis section of the March 2011 examination report. The examiner reiterated that it had been determined that the Veteran no longer had insomnia (resolved) and that it was related to sleep apnea, snoring, and nocturia. The examiner noted that he was not asked to opine if the Veteran's insomnia was related to his gall bladder cancer, and therefore this was not assessed. However, such an opinion was requested; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that, while the March 2011 VA examiner determined that the Veteran's insomnia had resolved, the Veteran has been diagnosed with several sleep disabilities during the period of the current claim. Specifically, VA treatment records reflect that he was diagnosed with an unspecified sleep disorder in June 2006, daytime hypersomnolence in May 2007, and insomnia in October 2011 (notably, after the March 2011 VA examination). Therefore, the Veteran has satisfied the "current disability" requirement for his service connection claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement of current disability is satisfied when the disability is shown at any point during the pendency of the claim, even if the disability subsequently resolves). The Veteran's STRs include a note in October 1995 that he was having trouble sleeping; he was assessed with an upper respiratory infection on that occasion. The post-service medical evidence reflects that he first complained of trouble sleeping in an April 1999 Air Force Base treatment record. The Board also notes that, in addition to contending that his sleep disability is secondary to his service-connected gall bladder cancer, the Veteran has indicated throughout the record that his sleep disability may be related to other service-connected disabilities as well. Specifically, in December 1998 and March 1999 statements, he asserted that it was very difficult for him to fall asleep at night because of his tinnitus. In a September 2002 VA treatment record, he reported that he had difficulty sleeping due to stopping of breathing; the examiner opined that the etiology may be chronic rhinitis or sinusitis. On multiple occasions (initially in a January 2004 private treatment record), he complained of difficulty sleeping at night due to increased nocturia from an enlarged prostate. In an April 2006 VA treatment record, he reported that he had postnasal drip and drainage from the sinuses at night and snored. The Veteran is currently service-connected for tinnitus, chronic allergic rhinitis, chronic sinusitis, and prostatic hypertrophy. In light of the above, the Veteran should be afforded an appropriate VA examination in order to determine whether any sleep disability (to include any sleep disability diagnosed during the period of the current claim) is related to service (including the October 1995 STR noting that he was having trouble sleeping) or to his service-connected gall bladder cancer, tinnitus, chronic allergic rhinitis, chronic sinusitis, and/or prostatic hypertrophy. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should schedule the Veteran for a VA examination to determine the nature and likely etiology of any current sleep disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should offer a response to the following question for each diagnosed sleep disability (to include all sleep disabilities diagnosed during the period of the current claim: unspecified sleep disorder in June 2006, daytime hypersomnolence in May 2007, and insomnia in October 2011): (a) Is it at least as likely as not (a 50% or higher degree of probability) that such sleep disability is causally related to any incident of the Veteran's military service (including the October 1995 STR noting that he was having trouble sleeping)? (b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's sleep disability is proximately due to his service-connected gall bladder cancer, tinnitus, chronic allergic rhinitis, chronic sinusitis, and/or prostatic hypertrophy? (c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's sleep disability has been aggravated by his service-connected gall bladder cancer, tinnitus, chronic allergic rhinitis, chronic sinusitis, and/or prostatic hypertrophy? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. 2. After completion of all of the above, the RO/AMC should review the expanded record and readjudicate the issue on appeal. If the issue on appeal remains denied, the RO/AMC should furnish the Veteran with an appropriate supplemental statement of the case, and the case should be returned to the Board after the Veteran is afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs