Citation Nr: 1326390	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  09-10 726	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for hypertension (HTN), to include as secondary to posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel


INTRODUCTION

The Veteran served on active duty from December 1952 to November 1954.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA).  

The Veteran and his spouse testified at a personal hearing regarding the issue on appeal in November 2009.  In April 2013, the Board remanded the claim for additional evidentiary development, and it has now been returned for further appellate consideration.  

The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder."  


FINDING OF FACT

The evidence of record shows that the Veteran's HTN is not due to any event or incident of the Veteran's period of active service, was not present within one year after service, and is not caused or aggravated by his service-connected PTSD.  


CONCLUSION OF LAW

HTN was neither incurred in nor aggravated by service; it is not proximately due to, the result of, or aggravated by a service-connected condition; and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103(A), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

HTN was neither incurred in nor aggravated by service; it is not proximately due to, the result of, or aggravated by a service-connected condition; and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1113, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).  

I. Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

Prior to the initial adjudication of the Veteran's claim in the September 2009 rating decision, he was provided notice of the VCAA in April 2008.  An additional VCAA letter was sent in May 2013. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records.  

Further, 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).  In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection, but there has been no notice of the types of evidence necessary to establish a disability rating or effective date for the disability on appeal.  Despite the inadequate notice provided to the appellant, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby).  In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot.  

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, 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 notice.  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).  

The Veteran was afforded a VA examination in June 2013 and an appropriate opinion was obtained.  The examination was thorough in nature and adequate for the purposes of deciding this claim.  The report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered an appropriate diagnosis and opinion consistent with the evidence of record.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); and Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  

Of significance is that neither the Veteran nor his representative raised questions about the adequacy of the June 2013 opinion, to which the Board attaches the most probative weight, as discussed more fully below.  

All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible.  The evidence of record includes service treatment records (STRs), service personnel records (SPRs), private medical records, VA outpatient treatment reports, a VA examination with an appropriate opinion, and statements and testimony from the Veteran and his representative.  The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain.  There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained.  

For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal.  

II. Service Connection for HTN

The Veteran is seeking service connection for HTN, to include as due to his service-connected PTSD.  As such, there are two theories of service connection that need to be addressed: direct (was the HTN incurred during service or within one year of service separation) and secondary (is the HTN etiologically related in any way to a service-connected disability)?  

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as HTN, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection is also warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Service connection can also be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995).  The Board also notes that a revised version of 38 C.F.R. § 3.310 became effective October 10, 2006.  The revised version essentially provides that VA will not concede aggravation of a nonservice-connected disease or injury by a service-connected disease or injury unless the baseline level of severity is established by medical evidence.  The regulation further sets out the procedure for determining the extent of any aggravation.  

Relevantly, 38 U.S.C.A. 1154(a) (West 2002 & Supp. 2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Although medical evidence may be required to support a claim in instances were specialized knowledge is required, lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (a lay persons is competent to testify to pain and visible flatness of the feet).  

The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a disability when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession."  Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").  

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998).  The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another.  Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  

For VA evaluation purposes, HTN means that the diastolic blood pressure is predominantly (meaning confirmed by readings taken two or more times on at least three different days) 90mm or greater, or the systolic blood pressure is predominantly 160mm or greater.  A 10 percent rating is warranted for HTN when diastolic pressure is predominantly 100mm or more, or; systolic pressure is predominantly 160mm or more, or; with a history of diastolic pressure predominantly 100mm or more which requires continuous medication for control.  

Background

The Veteran's available STRs and SPRs are silent with respect to any findings of HTN.  

The Veteran filed a claim for service connection for PTSD in October 2007 and filed a claim for HTN in November 2007.  The first post-service medical evidence in the claims file pertaining to hypertension is a private treatment record dated in February 1988.  On that document, it was noted that the Veteran had initially been treated in August 1987 for unstable angina and that marked HTN was noted in August 1988.  Subsequently dated private and VA records through the present day reflect treatment for various conditions, to include HTN.  The Veteran is currently taking medication to control his blood pressure.  

The Veteran was afforded a VA examination in June 2013. The examiner noted that the claims file was reviewed.  He concluded that the Veteran's HTN was not related to the service-connected PTSD disability.  His rationale was premised on the fact that while stress and anxiety could cause temporary elevations in blood pressure as a part of the normal stress response, they did not cause or permanently aggravate his essential HTN.  

Given that the claims file was reviewed by an appropriate physician and the opinion sets forth detailed findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the opinion to be sufficient for appellate review and of high probative value.  

Analysis

Initially, the Board has considered the Veteran's statements linking his HTN to service and to his service-connected PTSD.  However, medical evidence generally is required to establish a medical diagnosis or to address questions of medical causation when the disability in question is not subject to lay observation.  In these instances, lay assertions of medical status do not constitute competent medical evidence.  See Layno and Jandreau, supra.  Nevertheless, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, supra; and Buchanan, supra.  

Initially, the Board notes that the Veteran claims that his hypertension is related to the stress he experienced during service and/or  his service-connected PTSD, however, the contemporaneous service treatment records do not document any complaints or treatment during service for elevated blood pressure, and the record does not otherwise support the claim.  Moreover, the Veteran has not been shown to have any background or special training that would permit him to diagnose hypertension, so while he may be able to describe symptoms such as dizziness, dyspnea, or fatigue, he is not able to diagnose those symptoms as hypertension, or the early onset of this disability.  Similarly, although the Veteran is capable of saying that he suffered from symptoms like dyspnea since service, the Board finds that hypertension is not the type of disability that a lay person is capable of linking to service either by way of continuity of symptomatology or nexus to service.

Consequently, with respect to a claim that the Veteran's hypertension had its onset during service or to a period of one year following service, there must be competent medical evidence linking such disorder to service, and the record does not contain such evidence.  In fact, as was noted previously, the service treatment records do not reflect any complaints or treatment for hypertension or elevated blood pressure.  Further, there is no competent medical evidence linking hypertension directly to service, and in his June 2013 opinion, the examiner stated that stress and anxiety could cause temporary elevations in blood pressure as a part of the normal stress response, but did not cause or aggravate the Veteran's essential hypertension, which the Board finds as evidence against the claim on both a direct and secondary basis.

In sum, the preponderance of medical evidence, including the absence of any chronic complaints, symptoms, diagnosis, or treatment for HTN in service, and the June 2013 opinion far outweigh the Veteran's assertions.  See Buchanan, supra; see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

Therefore, after a review of all the evidence, the Board finds that the weight of the evidence of record is against the Veteran's claim for service connection for HTN under a direct theory of entitlement.  Moreover, there is no evidence of a clinical diagnosis of HTN within one year of service so the service incurrence of HTN may not be presumed.  In fact, the Veteran himself has indicated in his testimony that he was first diagnosed with HTN in 1987, which was over 30 years after service discharge.  Thus, the Board must further find that service connection for HTN is not warranted on a presumptive basis.  

However, the Veteran also maintains that his hypertension was caused or aggravated by his service-connected PTSD.  In this regard, the June 2013 VA opinion is also against the claim.  The Board would also first like to note that as was the case with the Veteran's direct service connection claim, lay witness evidence is also insufficient, on its own, to link the Veteran's hypertension to his service-connected PTSD.

With respect to the June 2013 opinion, by stating that stress and anxiety could cause temporary elevations in blood pressure as a part of the normal stress response, but did not cause or aggravate the Veteran's essential hypertension, the Board finds that the examiner was, in essence, also stating that the symptoms of the Veteran's PTSD did not cause or aggravate the Veteran's essential hypertension,  and there is no competent medical opinion evidence that contradicts the VA examiner's opinion.  

In conclusion, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for HTN on both a direct and secondary basis.  As the preponderance of the evidence is against the claim, reasonable doubt does not arise and the claim is denied.  38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012).  


ORDER

Service connection for hypertension is denied.  




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs