Citation Nr: 1326741 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-29 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1965 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2011, the Board reopened the claim of service connection for hypertension and remanded the matter to the RO via the Appeals Management Center in Washington, DC for additional development. The clam was properly returned to the Board, and in February 2013 the Board remanded the claim again for additional development. The appeal is now properly before the Board for adjudication. In evaluating this case, the Board has reviewed the Veteran's physical claims file and reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. The Veteran testified before the undersigned Veterans Law Judge at a hearing held in Roanoke, Virginia, in April 2011. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. Hypertension was not noted on service entrance. 2. Hypertension did not clearly and unmistakably preexist service. 3. Symptoms of hypertension were not chronic in service, and have not been continuous since separation from service. 4. Hypertension did not manifest to a compensable degree within one year of separation from service. 5. Hypertension is not etiologically related to service. CONCLUSION OF LAW Hypertension was not incurred in service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in February 2005, prior to the initial adjudication of the service connection claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice requirements of the VCAA apply to all elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. An April 2007 letter informed the Veteran of the type of evidence necessary to establish a disability rating and effective dates. To the extent that the VCAA duty to notify was not fully satisfied until the issuance of the April 2007 letter, subsequently to the initial RO decision, the issue was nonetheless readjudicated, most recently, with the issuance of a Supplemental Statement of the Case in April 2013, thus curing any timing defect. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, it is noted that in an April 2011 Board hearing before the undersigned, the presiding Veterans Law Judge clarified the issues on appeal and identified potentially relevant additional evidence that the Veteran may submit in support of the claim, including discussing the timeline of the Veteran's initial onset of hypertension and clarifying information related to claimed in-service treatment at a hospital in Vietnam. These actions by the undersigned supplement VA's compliance with the VCAA and serve to satisfy the obligations imposed by 38 C.F.R. § 3.103 See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of private and VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The Veteran was afforded a VA examination in November 2011, during which the examiner conducted a physical examination of the Veteran, was provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination funds that are consistent with the record. In March 2013, the VA examiner submitted an addendum opinion based on the initial examination of the Veteran, and clarifying the conclusions. The Board finds that 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); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record, including testimony provided at an April 2011 Board hearing before the undersigned. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. 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). Service Connection for Hypertension Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, hypertension is a "chronic disease" which is listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, including hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran is presumed to have entered service in sound condition with respect to his or her health except as to defects, infirmities, or disorders "noted" on service entrance. See 38 U.S.C.A. § 1111 (West 2002). Where no defect, infirmity, or disorder was noted on service entrance, the burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service and was not aggravated by service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292 (1991), Beverly v. Brown, 9 Vet. App. 402 (1996). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran has made numerous contentions regard the onset of hypertension, including that hypertension preexisted service and was made worse by exposure to combat situations. The Veteran's service records confirm receipt of the Combat Infantryman Badge, indicative of combat in service. Pursuant to 38 U.S.C.A. § 1154(b) (West 2002), with respect to combat veterans, VA shall accept as sufficient proof of service-connection satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. See also 38 C.F.R. § 3.304(d). 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). 38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). A veteran (or in this case, the appellant) must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). The Board finds that the Veteran had engaged combat with the enemy during service; however, while some symptoms of hypertension may be observable, the disease itself is not one which may be diagnosed merely through lay observation as only through the use of diagnostic testing can blood pressure be measured in such a way that the clinical diagnosis of hypertension may be verified, and only with a baseline measure of blood pressure readings is one able to compare subsequent readings to show a permanent increase in severity. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to testify regarding stress, including the stressful events during combat, that may affect short-term high blood pressure, because stress is a condition observable through the senses. Nonetheless, the Veteran's endorsement of onset or aggravation (permanent worsening) of hypertension during combat while in service are not competent to show a chronic disability of hypertension, and carry no probative value to show the stress caused or aggravated blood pressure in a sustained way to cause a subsequent diagnosis of chronic "hypertension." "Hypertension" is defined as high arterial blood pressure; various criteria for its threshold have been suggested, ranging from 140 mm Hg systolic and 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic. Dorland's Illustrated Medical Dictionary, 909 (31st ed. 2007). Under VA regulation, hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code (DC or Code) 7101, Note (1) (2012). Additionally, in order for hypertension to be considered compensably disabling, the evidence must show that diastolic pressure is predominantly 100 or more, or; that systolic pressure is predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. The Board finds that hypertension was not "noted" at service entrance, and finds that hypertension did not clearly and unmistakably preexist service. Service treatment records show that on induction examination in June 1965, the Veteran's blood pressure was 140/86, and the Veteran affirmatively denied any history of high blood pressure. The Veteran's blood pressure did not reach the threshold of hypertension on induction and the Veteran denied a history of hypertension. It is for these reasons that the Board finds that hypertension did not preexist service. The Board finds that symptoms of hypertension were not chronic in service. Service treatment records show no treatment referable to hypertension during service; however, the Veteran has testified that he was diagnosed with hypertension and treated at the 93rd Evacuation Hospital in Da Nang in 1966. Specifically, he has said that following a "blast injury" he was treated at the 93rd Evacuation Hospital, where a routine medical evaluation revealed hypertension. VA has been unsuccessful in obtaining records of such treatment, and has notified the Veteran as much pursuant to 38 C.F.R. § 3.159(e)(1) (2012). In July 1966 the Veteran endorsed having had a headache, and on separation examination in April 1967 the Veteran had a blood pressure reading of 132/74, below the threshold of hypertension. The Veteran denied current symptoms and any history of dizziness, frequent severe headaches, and high blood pressure. With regard to the Veteran's endorsement of an in-service diagnosis of hypertension, the Veteran is competent to report what he was told by a medical professional; however, the weight of the evidence shows that at service separation the Veteran was not hypertensive, based on diagnostic testing and his own denial of high blood pressure. While the Veteran now indicates that he was diagnosed with hypertension in 1966, on contemporaneous service separation examination in 1967 he nonetheless denied any history of high blood pressure. The "Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms." Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, however, the Board weighs the Veteran's contemporaneous in-service affirmative endorsement of a lack of history of high blood pressure against his more recent claim for compensation purposes of an in-service diagnosis and finds the Veteran's 1967 denial of a history of hypertension to be more probative than his current endorsement of in-service diagnosis. The same is true of the Veteran's current endorsements of in-service headaches and dizziness, versus his affirmative denial of such symptoms at service separation. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran; affirming Board decision that cited from McCormick on Evidence (3rd ed. 1984) for the proposition that "memory hinges on recency" and that earlier statements are generally more trustworthy than later ones); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (stating the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). For these reasons, the Board finds that the weight of the evidence shows that at separation the Veteran did not have hypertension, thus indicating that hypertension did not become chronic during service. The Board next finds that hypertension did not manifest to a compensable degree within one year of separation from service. Following service separation in April 1967, a June 1968 private medical treatment record shows that the Veteran's blood pressure was 160/70. The Board notes that, because systolic pressure was 160, the threshold of a compensable rating was reached. See 38 C.F.R. § 4.104, DC 7101. However, the presumptive provisions of 3.303(b) attach only where a chronic disease is compensably disabling within one year of separation. Here, the evidence shows that the Veteran's hypertension was not compensably disabling until one year and two months after separating from service. The Veteran has testified in oral and written statements that he was denied employment with the Goodyear Tire and Rubber Company in March 1968, within one year of separation from service, due to high blood pressure and/or hypertension. The Veteran has been consistent in this contention, and first mentioned on VA examination in June 1970 when he stated that he was rejected from employment due to high blood pressure. The Veteran indicated that after he was rejected he sought treatment from a private physician who prescribed him blood pressure medication. While the Board finds the Veteran's contention to be credible, the fact that he was denied employment for hypertension does not establish that hypertension reached the level of a compensable disability under VA regulations. Thus for the purposes of establishing that hypertension was sufficiently disabling within the presumptive time period, the Veteran's endorsed denial of employment in March 1968 does not establish that hypertension was 10 percent disabling within one year of separation from service, as such a general statement does not establish that diastolic pressure was predominantly 100 or more, or that systolic pressure was predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more with required continuous medication for control. See 38 C.F.R. § 4.104, DC 7101. While the Veteran is competent to report having been informed of a diagnosis of hypertension by a medical professional, see Jandreau, in this case, the Veteran has not even stated that he was diagnosed by a medical professional in March 1968, only that he was denied employment. Again, the report of denial of employment, absent evidence of the criteria used to deny such employment, and absent any evidence that there was medical examination or medical evidence upon which the company relied in denying employment, does not amount to a diagnosis of hypertension or evidence they hypertension had manifested to a compensable degree. The Board finds that the weight of the evidence establishes that hypertension is not otherwise related to service. Report of VA examination in June 1970 includes a diagnosis of hypertension. The Veteran's blood pressure was taken five times with systolic pressure readings ranging from 170 to 180, and diastolic pressure ranging from 100 to 110. The Veteran stated that one week after service he began having headaches and dizziness. Records show private and VA treatment for hypertension beginning in the 1970s and continuing sporadically until the present. On VA examination in November 2011, the examiner noted the Veteran's induction blood pressure and stated that, according to the American Cardiology Association and the American Heart Association, the Veteran's 140/86 represented "a pre-hypertensive/hypertension stage one reading prior to enlistment to active service." The examiner went on to opine that the Veteran's current hypertension was less likely than not attributable to, related to, or had its onset during service. On addendum opinion in March 2013, the examiner considered the Veteran's contentions of in-service headache, dizziness, and high blood pressure. The examiner noted that, to the extent that the Veteran had any such symptoms, these were "acute self limiting in episode." The examiner went on to state that the Veteran's contention of having been denied employment due to high blood pressure did not constitute a diagnosis of hypertension. In total, the weight of the evidence shows that hypertension did not preexist service, symptoms were not chronic in service, symptoms were not continuous since service, hypertension did not manifest to a compensable degree within one year of service, and the currently diagnosed hypertension is not related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hypertension is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs