Citation Nr: 1325068 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 08-06 646A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to a disability evaluation in excess of 10 percent for residuals of a groin muscle strain. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from September 1990 to March 1991, and on active duty from June 2006 to November 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the benefits sought on appeal. In December 2008, the Veteran testified before a Decision Review Officer (DRO) at the Indianapolis RO. A transcript of the hearing has been associated with the Veteran's claims folder. This case was previously before the Board in October 2011, when the Board remanded the issues listed on the title page for additional development of the record. With respect to the Veteran's claim for service connection for hypertension, the Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when 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 also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In April 2011, the Board additionally remanded the issue of service connection for a right lower leg condition, and in September 2012, the VA Appeals Management Center (AMC) granted service connection for this condition. When an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The September 2012 rating decision was a complete grant of benefits with respect to the issue of service connection for right shin and leg disorder, and this issue is no longer on appeal before the Board. The issue of entitlement to a disability rating in excess of 10 percent for residuals of a groin muscle strain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, D.C. VA will notify the Veteran if any further action is required on her part. FINDINGS OF FACT 1. The weight of the competent evidence of record is against a finding that the Veteran has a current hypertension disability related to her first period of military service. 2. The weight of the competent evidence of record supports a finding that a hypertension disability existed prior to the Veteran's second period of active service, but it was not aggravated as a result of such service. CONCLUSION OF LAW The Veteran's hypertension disability was not incurred in or aggravated by any period of the Veteran's military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss in detail the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify a veteran of the information and evidence necessary to substantiate a claim for VA benefits and to assist veterans in development of claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). When VA receives a complete or substantially complete application for benefits, it must notify the veteran 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 veteran is expected to provide. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Prior to the initial adjudication of the Veteran's claim, a letter dated March 2007 was sent to the Veteran in accordance with the duty to notify. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, the March 2007 letter informed the Veteran of information and evidence necessary to substantiate the claim, information and evidence that VA would seek to obtain, information and evidence that the Veteran was expected to provide, and information regarding the process by which initial disability ratings and effective dates are established. The Board finds that the notice requirements have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to her claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service treatment records and post-service VA and private medical records have been obtained, to the extent available. 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). Pursuant to the Board's October 2011 Remand, the Veteran was provided with an examination of her hypertension disability in November 2011. The examiner reviewed the Veteran's claims file and past medical history, recorded her current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board finds this examination to be adequate for the purpose of making a decision. See 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). In December 2008, the Veteran presented testimony before a DRO, and a transcript of that hearing is of record. The Veteran declined the opportunity to present testimony before a Veterans Law Judge. The Board finds that there is no indication in the record that any additional relevant evidence is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Presumptions of Soundness and Aggravation 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 such service. See 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-03 (July 16, 2003). Only such conditions as are recorded in examination reports are to be considered as "noted." See 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). A history of pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such conditions. See 38 C.F.R. § 3.304(b)(1) (2012). Indeed, while a history of the pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such condition, such history is to be considered with all other material evidence when determining whether a condition pre-existed active duty service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the above statute regarding soundness requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994)) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. at 45; see also Crowe, 7 Vet. App. 238. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). In other words, the presumption of aggravation applies only when pre-service disability increases in severity during service. See Beverly v. Brown, 9 Vet. App. 402, 405 (1996). A pre-existing disease or injury is presumed 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. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered "aggravation" of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Service Connection Based on Service from September 1990 to March 1991 With respect to the first period of service, the Veteran did not self-report a hypertension disability at service entrance. For example, in her March 1990 Report of Medical History, the Veteran denied a history of hypertension. The Veteran's March 1990 Report of Medical Examination was negative for any findings of hypertension. The Veteran has contended on a number of occasions, for example in December 2012, that she was first diagnosed with hypertension in February 2002, well after the conclusion of her first period of active duty service. The medical evidence of record supports such a finding. While the Board acknowledges that the Veteran stated in her December 2008 hearing before the DRO that her hypertension pre-dated this period of military service, the Board finds that the weight of the evidence supports a finding that the Veteran did not have hypertension before her period of active service from September 1990 to March 1991. Accordingly, the Board finds that the presumption of soundness attaches for this period and has not been rebutted. Therefore, with the Veteran presumed to be in sound condition at induction, the Board will analyze whether the Veteran suffers from hypertension as a result of this period of service. See Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). While the Board acknowledges that hypertension is a condition that may be established presumptively under certain circumstances, the Court has held that a claimant whose claim is based on a period of ACDUTRA cannot establish service connection presumptively. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). Such a presumption is not possible in this circumstance because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based on a period of ACDUTRA, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. Regardless, the Board finds that presumptive service connection would not be appropriate for the Veteran's hypertension for this period of service because, as will be discussed below, the Veteran's hypertension first manifested well after the conclusion of this period of service. Turning to the facts in the instant case, with regard to the first Hickson element, medical evidence of a current disability, the evidence of record demonstrates that the Veteran has a current hypertension disability. The first Hickson element, medical evidence of a current disability, is met with respect to the Veteran's claim. With respect to the second Hickson element, the Veteran did not receive treatment for hypertension during this period of service, nor does she allege any specific event in-service that led to her development or hypertension. The Board acknowledges that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including experiencing readily-observable physical symptoms such as symptoms associated with hypertension. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In the instant case, however, the Veteran does not claim that she experienced any symptoms associated with hypertension during this period of service, nor does she claim to have experienced an injury that led her to develop hypertension. Accordingly, the Board finds that the second Hickson element, in-service injury or disease, is not met, and the Veteran's claim for service connection for hypertension fails on this basis alone. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's hypertension is not related to this period of service. The benefit sought on appeal is accordingly denied. Service Connection Based on Service from June 2006 to November 2006 There is no entrance examination of record for the Veteran's period of active duty service beginning in June 2006, and the Board observes no other evidence suggesting that the Veteran's condition was indeed noted at entrance into service. Therefore, the presumption of soundness does not attach. Smith v. Shinseki, 24 Vet. App. 40 (2010). The Veteran contends that she was first diagnosed with hypertension in February 2002. The medical evidence confirms that the Veteran was first diagnosed with hypertension in February 2002, which is before the Veteran's second period of active duty service. This medical evidence establishes that hypertension pre-existed the second period of service. Upon review of the medical evidence from the Veteran's second period of service, the Board observes that the Veteran received treatment for "unstable hypertension" a number of times. Thus, the Board must determine whether the Veteran's pre-existing hypertension condition increased in severity during this period of active military service, thereby triggering the presumption of aggravation. See Maxson v. West, 12 Vet. App. 453 (1999) (holding that the presumption of aggravation is generally triggered by evidence that a pre-existing disability underwent an increase in severity in service); see also Sondel v. West, 13 Vet. App. 213 (1999). The Veteran underwent a VA examination of her hypertension disability in November 2011, at which time the examiner found that the Veteran's hypertension was less likely than not incurred in service, caused by service, aggravated by service, or related to any incident of service. As a rationale for this opinion, the examiner noted that the Veteran's blood pressure was initially well-controlled with hydrochlothiazide. Before discharge from the second period of service, the Veteran's hypertension medication was changed to Micardis HCTZ at 40mg daily. The examiner noted that the Veteran had hypertension for nearly 20 years, and the medical literature supports the need to adjust or add medications for better control in order to adapt to the natural progression of the disease. Therefore, the examiner concluded, that the Veteran's hypertension was less likely than not aggravated by active duty service. In addition to the results of this examination, the Board has reviewed the medical evidence for any suggestion that the Veteran's hypertension disability was worsened beyond the natural progression by active duty military service, and it has found no such suggestion. While the Veteran's service treatment records from this period of service demonstrate continuing treatment for hypertension, there is no medical suggestion that the Veteran's hypertension disability was worsening beyond the natural progression during this time. To the extent that the Veteran believes that her hypertension disability was permanently worsened by this period of military service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which she has first-hand knowledge, including, for example, experiencing physical symptoms associated with hypertension. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board acknowledges the Veteran's descriptions of her symptoms as both competent and credible evidence, and, indeed, afforded the Veteran with two VA examinations based on such descriptions. 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, namely, whether a hypertension disability was worsened beyond its natural progression during service, the issue of the progression of a medical condition is a determination 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). Thus, although the Board has carefully considered the lay contentions of record, the Board ultimately affords the objective medical evidence of record, which fails to find that the Veteran's hypertension was permanently worsened by her military service, with greater probative weight than these lay opinions. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's hypertension was not aggravated by this period of service. The benefit sought on appeal is accordingly denied. ORDER Service connection for hypertension is denied. REMAND The Veteran's claim for an increased rating for residuals of a groin muscle strain must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. The present level of disability is of primary concern when entitlement to compensation has already been established and an increase in the disability rating is at issue. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). While a new VA examination is not warranted based solely upon the passage of time, VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Turning to the facts in the instant case, pursuant to the Board's October 2011 Remand, the Veteran received an examination of her muscle strain in November 2011. The examiner indicated that the Veteran had no muscle atrophy and the Veteran used no assistive devices. The examiner noted that the Veteran had no weakness, no pain with motion and no flare-ups of pain. In December 2012, the Veteran submitted a statement indicating that she experienced persistent bilateral pain in the groin area, that she had little-to-no relief from groin pain even after stretching, she used foot inserts, and she used a cane as an assistive device. In April 2013, the Veteran's representative stated that the Veteran had experienced muscle atrophy, substantial weakness, and pain. All of these statements contradict the findings of the October 2011 examiner, and they suggest that the Veteran's condition may be worsening. Accordingly, the Veteran should be afforded an additional examination in order to determine the current severity of her groin muscle strain. Accordingly, the case is REMANDED for the following actions: 1. Ensure that all pertinent treatment records of which VA has notice have been obtained and either associated with the Veteran's claims file or her Virtual VA e-folder. 2. Then, schedule the Veteran for an examination with an examiner of appropriate expertise to determine the current severity of her service-connected groin muscle strain. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. Following a review of the Veteran's claims file, including the Veteran's statements, the examiner must describe the nature, current severity, and all symptoms associated with the Veteran's service-connected groin muscle strain. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 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 2002 & Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs