Citation Nr: 1325091 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-08 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from August 1967 to July 1970 (with service in the Republic of Vietnam from January 1968 to July 1970) and from December 1990 to April 1991. He also served in the Mississippi Army National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In September 2012, the Board remanded these claims for additional development. The RO was instructed to obtain VA treatment records from the period since March 2010, which were obtained and associated with the claims file. The RO was also instructed to afford the Veteran a VA examination for his hypertension and his lumbar spine disorder, which were completed in November 2012. That development having been substantially completed, the claims are now ready for appellate review. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order). The Board notes that this appeal originally included entitlement to service connection for bilateral hearing loss; however, this issue was granted in a January 2013 rating decision and, as such, is no longer on appeal. FINDINGS OF FACT 1. Throughout the entire period of the claim, the Veteran does not have a current disability of hypertension. 2. The Veteran's lumbar spine disorder is not causally or etiologically due to service. CONCLUSIONS OF LAW 1. Service connection for hypertension is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. Service connection for a lumbar spine disorder is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the 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, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2007 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. This letter also provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The Board acknowledges that the letter does not appear to inform the Veteran of the specific criteria needed to establish service connection on a secondary basis with respect to his claim for hypertension. However, there is no prejudice in this case because the claim must be denied for lack of a current disability, and the Veteran was adequately provided with notice that the evidence must show a current disability as an element of service connection. See August 2007 letter (advising the Veteran that the evidence must show "a current physical or mental disability"). Therefore, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and that, to the extent that there is any insufficiency with respect to the claim for secondary service connection, the Veteran is not prejudiced by such deficiency. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records, pertinent medical records and providing an examination when necessary. Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are associated with the claims file, as are post-service private and VA examination and treatment records. The Board notes that Veteran's service treatment records for the period of August 1967 to July 1970 could not be located. All available procedures were followed, but it was determined that further attempts would be futile. See February 2012 Memorandum. The Board recognizes that, in such cases where service records are missing, there is a heightened obligation to assist the appellant in the development of his case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases in which records are presumed to have been, or in actuality were, lost or destroyed while the file was in the possession of the government. The February 2012 Memorandum of record indicated that the Veteran was notified regarding the unavailability of these service treatment records in a July 2007 letter. Thus, the Board determines that the provisions regarding notice to the Veteran of the unavailability of records have also been followed. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); see also 38 C.F.R. § 3.159(e). Virtual VA records were also reviewed. There is no indication that there are any other outstanding pertinent documents or records that have not been obtained or that are not adequately addressed in documents or records contained within the claims folder. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. 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). II. Service Connection Claims The Veteran seeks entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type 2, and for a lumbar spine disorder. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Regarding the Veteran's National Guard service, "active" military service includes active duty, any period of active duty for training (ACDUTRA) during which the Veteran was disabled or died from a disease of injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the Veteran was disabled or died from an injury incurred or aggravated in the line of duty. See 38 C.F.R. § 3.6(a)-(b). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a 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. When the disease entity is established, there is no requirement of evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). Because arthritis and hypertension are specifically listed as chronic diseases under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is for application in the Veteran's claims of service connection. Additionally, where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis or hypertension becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be established when there is causation or aggravation of a Veteran's non-service connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A. Entitlement to Service Connection for Hypertension, to Include as Secondary to Service-Connected Diabetes Mellitus, Type 2 The Veteran asserts he currently has hypertension as a result of his diabetes mellitus, type 2. The Board notes that the Veteran is service-connected for diabetes mellitus, type 2. See April 2004 rating decision. Hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters (mm) or greater, or systolic blood pressure that is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. The first requirement to establish service connection is medical evidence of a current disability. The Board finds that the evidence of record does not established a current disability of hypertension throughout the claim period The available service treatment records were reviewed and do not contain any symptoms, treatment or diagnosis of hypertension. Post-service records were reviewed. Similarly, there is no clinical diagnosis of a hypertension. The Board notes that a private treatment record from May 2005 indicated the Veteran's blood pressure was 120/80. Several months later, in December 2005, the Veteran again was not diagnosed with high blood pressure; however, the Veteran was started on Lisinopril, a common anti-hypertensive, for "protection of his kidneys." See December 2005 treatment note. An Active Problem List from VA treatment records in October 2006 did not indicate hypertension was an active problem. A private treatment note from February 2007 did not indicate the Veteran was hypertensive and he had a blood pressure reading of 114/70. Although an October 2007 VA outpatient note reported that the Veteran had hypertension, this appears to be a result of the Veteran's own account of his problems; importantly, the Active Problem List from this date does not indicate a diagnosis of hypertension. A February 2009 VA treatment note indicated a blood pressure of 112/80. Similarly, VA outpatient center blood pressure readings from August 2009, February 2010, and August 2010 were all normal. The Veteran was afforded a VA examination in November 2012. The Veteran's blood pressure readings were 122/80, 120/80 and 120/78. The examiner stated the claims file was reviewed, but there was no evidence of a formal diagnosis of hypertension in private treatment records or in the VA clinic records. It was noted that the Veteran believed a private physician diagnosed him with hypertension in the 1990s, but there are no records indicating this. Additionally, the examiner noted there was no diagnosis of hypertension during service and the earliest mention of hypertension is in May 2007, where it was noted on the medication list that the Veteran was taking Lisinopril. The examiner noted that blood pressure readings were reviewed from the VA hospital dating back to 1998 and, although there were a couple of elevated readings, there was not a consistent finding of elevated readings. Based on these findings, the examiner stated that the diagnosis of hypertension could not be confirmed. The examiner stated that it is important to note that diabetics are often placed on ACE inhibiters, such as Lisinopril, to preserve kidney function from the effects of diabetes, and this may have been the case here. Notwithstanding the examiner's ultimate conclusion that a diagnosis of hypertension could not be confirmed, the examiner also stated that there is no evidence supporting a finding that the Veteran's diabetes caused or aggravated any hypertension in light of the findings denoting no significant renal involvement of diabetes. The Board finds the above evidence fails to demonstrate the first element of service connection, that of a current disability of hypertension. Importantly, the Board notes that the evidence suggests that the Veteran was in fact placed on Lisinopril in order to protect his kidneys. See December 2005 private treatment note. This evidence, combined with the November 2012 VA examiner's explanation that Lisinopril is not only prescribed for hypertension, but for kidney protection, indicates that, in this case, the Veteran has not been diagnosed with hypertension but, rather, was placed on Lisinopril to protect his kidneys from the effects of his diabetes. The Board notes that the Veteran has asserted he suffers from hypertension. Complaints, however, are not enough to establish service connection. There must be competent medical evidence of a current disability resulting from that condition or injury. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."). The Board has considered the Veteran's arguments. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report a contemporaneous medical diagnosis and is competent in describing symptoms that support a later diagnosis by a medical professional, whether or not a Veteran has a current disability of hypertension is a question that involves some degree of medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg); see also 38 C.F.R. § 4.104, Diagnostic Code 7101 (Note 1) (to support a diagnosis of hypertension, the blood pressure readings must be taken two or more times on at least three different days). Here, there is no competent evidence from any health-care provider or blood pressure readings to sufficiently demonstrate that the Veteran has a current disability of hypertension. To the contrary, the prior references to a diagnosis of hypertension or blood pressure medication were expressly addressed by the November 2012 VA examiner, who ultimately concluded that a diagnosis of hypertension could not be confirmed. Moreover, assuming that the Veteran is competent to report that a previous doctor told him he had hypertension, the Veteran's recollection is inconsistent with other evidence of record, including the December 2005 VA treatment report and November 2012 VA examination report. Thus, the Veteran's characterization of what he was told by previous providers lacks credibility. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The Board is fully aware of its heightened duty to consider carefully the benefit of the doubt rule in cases such as this, where service records are missing. Notwithstanding the above, the Board finds that the probative evidence does not support a diagnosis of hypertension at any time during the period of the claim. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In light of the foregoing, the preponderance of the evidence is against the claim of service connection for hypertension. There is no doubt to be resolved, and service connection is not warranted on either a direct or secondary basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Entitlement to Service Connection for a Lumbar Spine Disorder The Veteran seeks entitlement to service connection for a lumbar spine disorder. He asserts he began experiencing low back pain during service and continues to experience chronic lumbar spine pain. Available service records were reviewed. Examinations from April 1977, June 1980, November 1984, July 1988, April 1991, and April 1994, did not note any spinal abnormalities. In June 1994, the Veteran complained of dull pain in his lower back and groin area for one day. He was diagnosed with prostatitis. There were no additional complaints, treatments, or diagnosis of lower back problems during service. Post-service, in October 2004, a private x-ray report indicates the Veteran was diagnosed with extensive arthritis involving the thoracic and lumbar spine. In January 2005, VA outpatient records indicate the Veteran sought treatment for low back pain, which he stated had a history of 15 to 20 years. It was noted that he had a history of gout. A magnetic resonance image (MRI) of the spine was ordered. The MRI from February 2005 noted small left paracentral disc bulging at L3-4, causing mild spinal stenosis. The Veteran sought treatment for low back pain again in May 2005, although the Veteran indicated that the pain might be due to his kidneys. The Veteran again complained of low back pain in June 2005. There are numerous complaints of low back pain in the private and VA treatment records from 2005 through 2013. The Veteran was afforded a VA examination in November 2012. The Veteran reported he was always lifting heavy equipment and supplies while in Vietnam and was bounced around inside a tank while in the National Guard. He stated that he continues to have chronic low back pain. X-rays demonstrated mild degenerative changes of the lumbar spines. The examiner noted that the Veteran complained of dull pain in the lower back during service in June 1994 and that the Veteran's reported symptoms of low back pain were taken into account (as directed by the Board's September 2012 remand). However, based upon the evidence, the examiner was not able to define a nexus between any incident, event, or occurrence in the military with the Veteran's present findings. Instead, the examiner stated that the X-ray and prior MRI findings are likely related to the aging process. Despite the absence of some service treatment records, the Board notes that aside from the June 1994 complaint of low back pain during service and the associated treatment for prostatitis, there were no further complaints pertaining to the lumbar spine documented during service. In this regard, following the 1994 complaint, there were no further complaints or diagnosis pertaining to the lumbar spine until approximately 2004. Moreover, the Board finds it especially significant that the November 2012 examiner was able to review the X-ray and prior MRI findings and expressly determine that the nature of these findings were instead likely age-related. The Veteran's lay statements in support of his claim have been considered. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that while the Veteran clearly believes that he has a lumbar spine disorder as a result of his time in service, as a layperson without any medical training and expertise, he is not qualified to render a medical opinion regarding the etiology of his current lumbar spine disorder, which the Board notes is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg) The Board does not dispute the fact that the Veteran has a current diagnosis of lumbar degenerative disc disease with spinal stenosis, or that the Veteran experienced low back pain in service. However, the Board finds the December 2012 VA examination to be the most probative evidence of record regarding the etiology of the Veteran's back disorder. Importantly, in finding that a nexus to an in-service incident, event, or occurrence in the military could not be determined, the VA examiner explained that the X-ray and MRI findings are "likely related to the aging process." Thus, the examiner provided a logical rationale for why a favorable nexus opinion could not be given: the findings are instead consistent with aging. In summary, the most probative evidence is against the Veteran's claim for service connection on either a presumptive or direct basis. See 38 C.F.R. §§ 3.303, 3.307(a)(3), and 3.309(a). To the contrary, the VA examiner has opined that the Veteran's lumbar spine findings are likely related to the aging process. As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. (CONTINUED ON THE NEXT PAGE) ORDER Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for a lumbar spine disorder is denied. ____________________________________________ K. GIELOW Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs