Citation Nr: 1326766	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  09-13 103	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

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


REPRESENTATION

Veteran represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from October 1965 to July 1967, with service in Republic of Vietnam from August 1966 to July 1967.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  Jurisdiction of the Veteran's claims file was subsequently returned to the Roanoke, Virginia RO.  

In February 2013, the Veteran's case was remanded for further development.  The case has since been returned to the Board for adjudication.  

In reaching this decision below, the Board has reviewed both the paper claims file and the electronic file contained in Virtual VA.  


FINDING OF FACT

Hypertension was not shown during service, or for many years thereafter; it is not shown to be related to any incident of active service, to include herbicide exposure; and it is not shown to have been either caused or aggravated by the service-connected PTSD.


CONCLUSION OF LAW

Hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred, or as due to or having been aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  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).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, the VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary just prior to this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

A VCAA letter dated in July 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

Even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced state service organization and has submitted argument in support of his claim.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs) and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2012).  

In this case, the Veteran's claims file was sent to the July 2012 VA examiner to provide an opinion with respect to the etiology of his hypertension.  This examiner considered the Veteran's complaints, as well as the service treatment records, and post-service treatment records prior to reaching his April 2013 opinion.  Based on the foregoing, the examiner concluded that the Veteran's hypertension was not due to or aggravated by an event, disease, or injury incurred during active service, nor was it caused or aggravated by his service-connected PTSD.  Therefore, as the opinion was based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion provided is adequate.  Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim.

Given the April 2013 supplemental VA examiner's opinion and report and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its February 2013 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability.  38 C.F.R. § 3.310 (2012). This includes disability made chronically worse by service- connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  The Board notes that there was an amendment to the provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744 - 47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease (which includes hypertension), 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, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  In the instant case, however, there is no presumed service connection because hypertension was not medically diagnosed within one year of discharge.  

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Also, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."  38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(iii).  If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).  Such diseases include, among others, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including CAD (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina).  38 C.F.R. § 3.309(e).

Such presumption is not absolute, however, and may be rebutted by affirmative evidence to the contrary.  Affirmative evidence to the contrary does not require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service.  See 38 C.F.R. § 3.309.

Although the Veteran has not contended it, the Board has considered whether service connection is warranted for hypertension as a result of in-service exposure to herbicides.  The National Personnel Records Center (NPRC) confirmed that the Veteran had service in the Republic of Vietnam from August 1966 to July 1967.  Therefore, he is presumed to have been exposed to herbicides during service.  

As to the Veteran's hypertension claim, the Agent Orange Act of 1991 requires that when the Secretary determines that a presumption of service connection based on herbicide exposure is not warranted for health outcomes, he must publish a notice of that determination, including an explanation of the scientific basis for the decision.  The Secretary's determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary.  38 U.S.C.A. § 1116(b) and (c).  

In September 2011, the NAS issued Veterans and Agent Orange: Update 2010 (Update 2010).  Therein, the NAS concluded that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam was not warranted for multiple health outcomes, including hypertension.  See 77 Fed. Reg. 47924 (August 10, 2012).

Although the Veteran has not contended that service connection is warranted on a direct basis, the Board notes, notwithstanding the foregoing presumptive provisions, that the Federal Circuit has held that a claimant is not precluded from establishing service connection on a direct basis.  See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be 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) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran 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 also Routen v. Brown, supra.

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.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see 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).  

Factual Background and Analysis

The Veteran contends that his hypertension is either directly related to his military service or secondary to his service-connected PTSD.  He has argued that his blood pressure spikes whenever he becomes nervous.  He contends that the onset of his high blood pressure was during combat while service in Republic of Vietnam.  When he returned home, he was "extremely nervous."  He recalled having severe headaches that he attributed to his high blood pressure.  The Veteran contends that "shortly after [he] came home [from Vietnam]," he was placed on blood pressure medication.  

A review of the Veteran's STRs shows no treatment for or diagnosis of high blood pressure or hypertension.  Upon induction physical examination, the Veteran's blood pressure was 122/76.  A blood pressure reading taken at his discharge physical examination in July 1967 was 140/92.  There were no other blood pressure readings noted in his STRs.  

In his July 2008 claim for service connection, the Veteran did not specify when he first was treated for hypertension, nor did he indicate where this first treatment took place.

Following service, the first evidence of record showing treatment for hypertension was a June 2005 private treatment record.  At that time, the Veteran reported a swing of blood pressure readings, but did not report to treating professionals that he had similar symptoms in service or since.  

In his December 2008 notice of disagreement, the Veteran indicated that "it wasn't two years down the road [after service] that hypertension started."  

Throughout VA and private treatment records dated since the first clinical notation of hypertension (in the record) in 2005, the Veteran has been diagnosed as having hypertension.  At no time during the course of his treatment did he report being treated for hypertension during service, nor did he advise treating professionals that he was treated for hypertension soon after discharge from service.  

The Veteran was afforded a VA examination in July 2012, during which the hypertension diagnosis was confirmed.  The Veteran reported that the onset of his hypertension was in 1967.  Following review of the claims file and interview of the Veteran, the examiner opined that the Veteran's hypertension is less likely than not caused by an injury, event, or disease incurred during service.  The examiner did not, however, provide an opinion with respect to his secondary service connection claim.  As such, the Board found this opinion to be inadequate to that extent, and remanded the claim in February 2013 for a supplemental opinion.

The Veteran's claims file was returned the July 2012 VA examiner in April 2013 for a supplemental opinion.  The examiner, after review of the claims file, opined that the Veteran's currently diagnosed hypertension is less likely than not caused by an event, injury, or disease in service, nor was it caused or aggravated by his service-connected PTSD.  In reaching this conclusion, the examiner noted that according to VA guidelines, hypertension can only be diagnosed after 3 blood pressure readings on different days.  The examiner noted that the Veteran's claims file does not show that the Veteran had elevated blood pressure three times while on active duty.  Further, the examiner found no documentation of any treatment for hypertension soon after discharge from service.  With respect to the secondary service-connected claim, the examiner indicated that medical literature has not found a positive association between PTSD and hypertension.  Secondary causes or disabilities that aggravate hypertension include "renal disease, pheochromocytoma, drug use (such as alcohol abuse), primary aldosteronism, cushings, sleep apnea, [or]coaraction of aorta."  He further noted that PTSD is not a secondary cause hypertension, and "most causes of hypertension are associated with alcohol use, physical inactivity, age, obesity, and excessive salt intake."  In other words, "PTSD is not listed as the etiology in current medical teachings."  There is no clinical opinion to the contrary.  

Upon careful review of the evidence of record, the Board finds that the competent and credible evidence of record does not show that the Veteran's current hypertension was caused or chronically worsened by his military service or his service-connected PTSD.  In other words, the preponderance of the evidence is against a finding that the Veteran's hypertension is related to an injury, event, or disease in service, or related to herbicide exposure, nor is it secondary to his service-connected PTSD.  As noted above, connection for hypertension on a presumptive basis due to herbicide exposure is not permitted, and it has not otherwise been shown to be directly related to his presumed herbicide exposure.  

Initially, the Board notes that the Veteran has a current diagnosis of hypertension.  Therefore, the crucial inquiry is whether the Veteran's hypertension is caused by or otherwise related to his military service, or secondary to his service-connected PTSD.  The Board concludes that the preponderance of the evidence indicates it is not.

Most importantly, the July 2012 and April 2013 VA examination reports include thorough opinions finding no link between the Veteran's current hypertension and his military service.  Additionally, in the April 2013 report, the examiner opined that the Veteran's hypertension was not caused or aggravated by his PTSD.  The VA examiner in both opinions provided a detailed rationale and is consistent with the evidence of record.  He indicated that the Veteran did not have enough high blood pressure readings in service to warrant a hypertension diagnosis, there are no records showing a hypertension diagnosis within the first post-service year, and according to medical literature, PTSD is not known to cause or aggravate hypertension.  

Given this rationale and the fact that the both the Veteran's claims file and the reported relevant and accurate history were considered by the examiner, the Board finds the July 2012 and April 2013 opinions to be of very high probative value.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board may favor the opinion of a competent medical professional so long as an adequate statement of reasons and bases is provided).

As noted above, the STRs show no treatment for any high blood pressure readings or hypertension.  The Board is aware that his blood pressure reading at discharge was 140/92, but with no indication or evidence of higher prior readings.  

Thus, there is no credible or competent evidence of the onset of hypertension in service.  In that regard, even conceding that he had an elevated blood pressure reading at his separation examination, 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012), specifically indicates that hypertension must be confirmed by readings taken 2 or more times on at least 3 different days.  Presuming the Veteran's credibility in this matter, he had at least one slightly elevated blood pressure reading on one day during service.  To the extent that such an incident occurred, the medical professionals clearly found no basis for a diagnosis of hypertension and, indeed, marked the Veteran's blood pressure as 140/92, which would not be considered a hypertension disability under VA regulations.  See id.  The Veteran claims to have experienced headaches and nervousness during service, but he did not seek treatment for the same, nor were these symptoms noted as service separation.  

The Board appreciates the assertions made by the Veteran that his current hypertension first started while in service and has continued since, or alternatively, that it was caused or aggravated by his service-connected PTSD.  The Board finds, however, that the Veteran is not competent to say that his hypertension was caused or aggravated by the nerves and headaches he experienced in service, nor is he competent to say that his hypertension was caused or aggravated by his PTSD.  Although nervousness and headaches are matters that can be observed and described by a lay person, a diagnosis of hypertension is not.  Moreover, headaches following nervousness can be observed and described by a lay person, but diagnosing it as secondary to a service-connected disability is beyond the competency of a lay person.  Finally, he lacks the specialized knowledge to connect a current diagnosis of hypertension to nervousness and headaches during service.  The former represents an observed cause and effect relationship, while the latter relies upon medical knowledge.  Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In other words, a man is aware he is limping, but may not be able to identify the actual reason why.  As such, the Veteran's assertions as to secondary service connection lack probative value.   

The Veteran is considered competent to report that he was treated for hypertension soon after discharge from service, and since.  The Board finds, however, that the Veteran's statements regarding onset of hypertension and continuity since service are not credible.  The contemporaneous records show no actual or sufficient diagnosis of high blood pressure or hypertension during service.  Further, records reflect no reports of ongoing treatment for hypertension since service.  Additionally, the Veteran contends that he was diagnosed as having hypertension within a few years following service and has been on medications since that time.  Importantly, however, the Veteran has not reported the names of those who treated him soon after service, nor has he indicated where VA could find these records to help support his claim.  The only clinical evidence of record including a hypertension diagnosis is dated no earlier than 2005-over 35 years following discharge from service.  The Board further notes that in the course of both VA and private treatment for various disabilities, he has not contended that his hypertension had its onset during service and has continued since.  

With that being said, there is no competent or credible evidence finding a link between the Veteran's currently diagnosed hypertension and an event, injury, or disease incurred during service, due to exposure to herbicides, or secondary to a service-connected disability.  Again, the July 2012 and April 2013 examiner provided a very detailed opinion after extensive review of the Veteran's claims file, interview of the Veteran, and physical examination (during the July 2012 examination).  Thus, this examiner's opinion is given more probative value than the lay evidence presented by the Veteran that has been found to lack either competence or credibility. 

Overall, the Board finds that the preponderance of the evidence is strongly against the conclusion that the Veteran's claimed hypertension is in any way etiologically related to service or a service-connected disability.  Accordingly, the claim for service connection for this must be denied.  VA's benefit-of-the-doubt doctrine is not applicable in this case because the preponderance of the evidence is against the Veteran's claim.  38 U.S.C.A. § 5107(b).



ORDER

Service connection for hypertension is denied.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs