Citation Nr: 1324843 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 08-29 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1972 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in February 2011, which granted a joint motion for remand and, among other things, remanded the appeal for action consistent with the joint motion. The appeal arises from a July 2007 rating decision by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2009, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board reopened the service connection claim for hypertension in April 2013 and remanded the issue for additional development. FINDING OF FACT Hypertension was not manifest during active service or to a degree of 10 percent or more within one year of service, is not shown to have developed as a result of an established event, injury, or disease during active service, and is not shown to have developed as a result of or to have been permanently aggravated by a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by military service and is not proximately due a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in May 2007, November 2007, and April 2011. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, Virtual VA electronic records, private treatment records, internet source medical literature, and the Veteran's statements and testimony in support of his claim. The development requested by the Board in April 2013 has been substantially completed. There is no evidence that any additional pertinent records exist which are necessary for an adequate determination. In correspondence dated in April 2013 it was noted the Veteran reported he had no additional evidence to submit in support of his claim. Further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. The May 2013 VA medical opinion obtained in this case is adequate as it is predicated on a substantial review of the record and medical findings and considers the Veteran's complaints and symptoms. Although a medical opinion addressing the Veteran's claim that he developed hypertension as a result of the stress of military life and stress and immune system and artery damage associated with hospitalization for pneumonia in November 1972, there is no credible evidence he experienced any significant increased stress in service or developed any immune system or artery damage. The Board finds he has not identified a specific event, disease, or injury that may be verified as having occurred during active service and an additional examination is not required. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a VA examination is not required to when there is no credible evidence establishing an event, injury, or disease in service). Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases, including hypertension, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). These presumptions are rebuttable by affirmative evidence to the contrary. Even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disorder is not included as a presumptive disorder, direct service connection may be established by evidence demonstrating that the disease was in fact incurred during the service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (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), (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning his continuity of symptoms after service may be considered credible, and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The pertinent evidence includes service treatment records without indication of complaint, treatment, or diagnosis of hypertension. The Veteran's April 1975 separation examination revealed a normal clinical evaluation of the vascular system. Sitting blood pressure readings of 126/76 were reported. He denied having or having ever had high or low blood pressure in his report of medical history. Private treatment records dated in August 2001 show the Veteran was provided a diagnosis of hypertension after reporting to the emergency room with chest pain. No opinion as to etiology was provided. In correspondence received in January 2007 the Veteran noted he had been hospitalized for pneumonia during active service in November 1972 and asserted that his hypertension was related to damage to his arteries and immune system he sustained at that time. In a May 2007 statement he asserted his hypertension was a complication of pneumonia. He subsequently asserted his hypertension was secondary to his cold-induced asthma and reported that when he had asthma attacks his blood pressure spiked to stroke stage. VA treatment records dated in April 2008 noted the Veteran reported having experienced bilateral chest tightness, shortness of breath, and wheezing after working outside in cold temperatures for several hours. He stated he had noticed an elevation in blood pressure after each episode. The examiner's assessment included cold and exercise induced bronchospasm and angina equivalent. Subsequent VA treatment records included diagnoses of hypertension without opinion as to etiology. In correspondence dated in August 2008 the Veteran asserted his hypertension was incurred as a result of stress he experienced while serving in Europe during the Vietnam War. He reported that his stress had been related to military life and hardship. At his September 2009 hearing he reiterated his claim that his blood pressure elevated to stroke stage when he had asthma attacks. In correspondence dated in March 2011 he stated his hypertension was somehow secondary or aggravated by his respiratory disorder. Service connection was established for asthma (cold induced) in an April 2012 rating decision. A 10 percent disability rating was assigned. In March 2013, the Veteran's service representative submitted a copy of a medical article abstract which noted there was "a suspicion that the similarities between [asthma and hypertension] may predispose the individuals with one disease to the other." It was further noted, in essence, that it had been concluded that transient elevation of blood pressure may occur. The frequency of hypertension among asthmatics was noted to be quite high and the concurrent family history and frequency of acute severe asthma attacks did not seem to determine the status of blood pressure. VA examination in May 2013 included a diagnosis of hypertension and noted the diagnosis had first been provided in 2001. The Veteran's hypertension was found to be less likely than not (less than 50 percent probability) proximately due to the Veteran's service-connected condition. The rationale for the opinion included that the Veteran had mild intermittent asthma and his hypertension was essential in nature. The examiner summarized the pertinent medical evidence of record and noted the claims file was reviewed. The report also included a definition for aggravation of nonservice-connected disabilities which noted that "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected." Based upon the evidence of record, the Board finds that hypertension was not manifest during active service or to a degree of 10 percent or more within one year of service, is not shown to have developed as a result of an established event, injury, or disease during active service, and is not shown to have developed as a result of or to have been permanently aggravated by a service-connected disability. Records show the Veteran denied having ever had dizziness or fainting spells in his April 1975 report of medical history and the May 2013 VA examiner found the evidence demonstrated his hypertension was first manifest in 2001. It was further noted that his hypertension was essential in nature and was not proximately due to his service-connected mild intermittent asthma. The May 2013 examiner's opinions are persuasive and based upon adequate rationale. They are shown to have been based upon a thorough examination, a thorough review of the evidence of record, and adequate consideration of the evidence of record. Although the medical article abstract received in March 2013, in essence, noted the study addressed a "suspicion" of a relationship between asthma and hypertension, it was concluded that the frequency of acute severe asthma attacks did not seem to determine the status of blood pressure. It was concluded that transient elevation of blood pressure may occur, but there is no indication that such transient elevations were believed to result in any permanent or chronic increase in blood pressure findings. The Board finds the medical article abstract to be not probative of the Veteran's claim. While the Veteran is competent to provide evidence as to observations and some medical matters, his statements are, at most, conclusory assertions of a nexus between a present diagnosis and his service-connected disability or unverified events in service. Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331. As questions of a present medical diagnosis and any relationship to service or a service-connected disability are complex etiological questions akin to the type of medical matters which courts have found laypersons are not competent to provide, his statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence). The Veteran in this case is not shown to be competent to provide etiology or nexus evidence as to this matter. The Board finds the preponderance of the evidence in this case is against the claim for entitlement to service connection. The persuasive evidence in this case demonstrates the Veteran's hypertension was not manifest during or for many years after active service, did not develop as a result of active service, and was not caused or aggravated by a service-connected disability. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs