Citation Nr: 1326956 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-23 447 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1969. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 and April 2009 rating decisions of the RO in St. Louis. The case is now under the jurisdiction of the RO in Muskogee, Oklahoma. In September 2012, the Board remanded the case for additional development. The Board has considered documentation included in Virtual VA. The claim for an innocently acquired psychiatric disorder is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. 2. The Veteran is not shown to have manifested complaints or findings of hypertension in service or for several years thereafter. 3. The currently demonstrated hypertension is not shown to be due to the presumed exposure to herbicides or another event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran's disability manifested by hypertension is not due to disease or injury that was incurred in or aggravated by active service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & 2012); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Under applicable law, VA has a duty 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 & Supp. 2012); 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must 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). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in November 2008 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter additionally provided him with information concerning the evaluation and effective date that could be assigned should his claim be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed as to the claim of service connection for hypertension, and that all evidence necessary for resolution of this matter has been obtained. The Veteran's service treatment records and post service treatment records have been obtained. He has been afforded the opportunity to appear for a personal hearing and has been afforded a VA examination. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Board is further satisfied that the RO has substantially complied with its September 2012 remand directives as they pertain to the claim decided at this time. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed, the AOJ secured all outstanding VA treatment records and attempted to obtain records from 1991 to 2005, verified that he had service in the Republic of Vietnam, and afforded him a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). With regard to the VA clinical records, the AOJ secured and associated with the Virtual VA file numerous pages of records. In March 2013, the AOJ certified that no earlier records were available. For these reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). 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 for certain diseases, such as cardiovascular-renal disease, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between 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.") In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for hypertension. The term "hypertension" refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm. Hg systolic and from 90 mm. Hg diastolic. See Dorland's Illustrated Medical Dictionary 635 (26th ed. 1985). Similarly, for VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater. The term "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Code 7101, Note 1 (2012). The current records, including a VA treatment record of January 2013, serve to document a diagnosis of hypertension. As for the in-service incurrence of the condition, the Board notes that as the claimed disorder addressed hereinbelow is not related to combat, 38 U.S.C.A. § 1154(b) does not apply. The Veteran does not contend that his hypertension was present in service. He acknowledges that his physical examination and blood pressure were normal at discharge. See, e.g., December 2008 VA Form 21-4138. Indeed, a review of the service treatment records shows that they were negative for any complaints or findings referable to hypertension. His September 1969 separation examination noted that his heart and vascular system were normal, and his blood pressure was recorded as 132/86 at the time of his separation from service. Rather, the Veteran asserts in this case that his hypertension developed as the result of herbicide exposure in service. See, e.g., December 2008 VA Form 21-4138. In this regard, he submitted a copy of an article that suggested that Veterans who were exposed to Agent Orange in the Republic of Vietnam might have an increased risk of developing hypertension. The law provides that the Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. If the Veteran was exposed to an herbicide agent during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Here, the records establish that the Veteran served in the Republic of Vietnam from August 24, 1968 to September 11, 1969. Thus, based on this service, he is presumed to have been exposed to certain herbicide agents, including Agent Orange, incident to that service as documented. However, as noted, hypertension is not one of the diseases that are identified as being related to herbicide exposure for the purpose of receiving VA compensation benefits on this basis. See 38 C.F.R. § 3.309(e). In fact, it has been specifically excluded as such a disease. Id., Note 3. Accordingly, because the Veteran has not been diagnosed with a condition included in 38 C.F.R. § 3.309(e), these regulation do not permit the grant of service connection for hypertension in this case. While hypertension is not a disability deemed by regulation to be related to Agent Orange exposure, this does not prevent the Veteran from establishing a nexus linking it to his period of active service. In the case of Combee v. Brown, 34 F. 3d 1039 (Fed Cir. 1994), the U.S. Court of Appeals for the Federal Circuit found that under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, a claimant was not precluded from presenting proof of direct service connection between a disorder and exposure to Agent Orange, even if the disability in question was not among statutorily enumerated disorders which were presumed to be service related, as the presumption was not the sole method for showing causation. In December 2012, a VA medical opinion was obtained in this case. The examiner reviewed the claims file and determined it was less likely than not that the Veteran's hypertension was incurred in or caused by his period of active service. The examiner noted that, at the time of separation, the Veteran's blood pressure was normal. He further noted that, in November 2007, the Veteran reported the onset of hypertension in the late 1970s or early 1980s. Later in 2007, the Veteran was noted to have reported its onset in 1970 or 1971. At the time of the examination, the Veteran reported to the examiner that it had its onset soon after discharge. The VA examiner concluded that the initial report of an onset in the late 1970s or early 1980s was the most credible. He found that a reasonable person could agree that the Veteran could have confused 1970 with 1971; however, it was less likely than not that the Veteran would confuse 1970/1971 with the late 1970s or early 1980s. He further added that the initial November 2007 report of onset was more credible than that described at the time of the examination because the Veteran's recollection of events in the 1970s and 1980s would be more accurate in 2007 than in 2012. For these reasons, the VA examiner found that the hypertension less likely as not had its onset in service or within one year of discharge from service, and as likely as not had its onset more than one year after service. In March 2013, in an addendum opinion, the examiner VA added that the hypertension was less likely as not related to, the result of, or aggravated by herbicide exposure because of factors that were unrelated to herbicide exposure. Rather, the examiner found that factors unrelated to herbicide exposure, such as post-service obesity (254 pounds and 74 inches tall) and other factors common in the general population were the likely cause of the hypertension. There is no medical evidence that is contrary to the VA examiner's opinion. The Board finds the report fully adequate for the purposes of adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The examiner based his opinion on an examination of the claims file and interview of the Veteran, as well as reference to past and current diagnostic reports. He accepted and discussed the in-service herbicide exposure in rendering his opinion. In the absence of any competent evidence to the contrary, the Board finds the preponderance of the evidence is against the claim. The Board in this regard has considered the Veteran's attorney's July 2013 argument that the VA examination was not adequate because it was based on inaccurate facts, as the examiner did not discuss the 1983 record showing the onset of hypertension as early as 1975 as opposed to the "late 1970s." However, the fact that the onset was in 1975 rather than the "late 1970s" is of little impact in that hypertension was still not shown to have arisen in service or within one year thereafter. For these reasons, the Board finds that the current hypertension was not manifested in service or to a degree of 10 percent within one year after service. The Board acknowledges the Veteran's lay statements that his hypertension was present within a year after discharge. The Veteran is competent to report any information conveyed to him by his physician, such as a contemporaneous medical diagnosis or opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau and Buchanan). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 465 (distinguishing between 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")). Here, the Veteran's lay assertions are found to be of reduced credibility because they are internally inconsistent based on his various reports that his hypertension arose anywhere from 1970 to the early 1980s. Moreover, the most probative information is contained in November 1983 treatment documentation that noted that the Veteran had suffered from high blood pressure for eight years. This would date the onset of the claimed hypertension to 1975, more than one year after his discharge from service. In addition, based on this evidence there is no basis for finding that the claimed hypertension was manifested to 10 percent during the first year after service. A 10 percent disability evaluation is contemplated when diastolic pressure is predominantly 100 or more, or; 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, Diagnostic Code 7101. Certainly, on this record, there is not showing that medication was prescribed in the first year after service or that he actually sought treatment of hypertension until 1983. There is simply insufficient evidence to show that the Veteran had hypertension manifested to a compensable degree in the year following his separation from service. Additionally, the Board notes that the Veteran has not alleged, nor does the evidence show, a continuity of symptomatology following service. The United States Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). (holding, "nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). As hypertension is a chronic disease under § 3.309(a), the Veteran may attempt to establish continuity of symptomatology in lieu of a nexus. In this case, however, hypertension was not noted during service in that the evidence establishes that there were not characteristic manifestations of the disease process during service. The Veteran also does not assert that the condition arose in service. Moreover, the earliest post-service evidence of record dates from 1983 and only serves to suggest that hypertension was initially noted in 1975, several years after the discharge from service in 1969. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding that 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.). The only other evidence of record supporting the Veteran's claim are his lay assertions of a nexus. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a Veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, an opinion as to an etiological relationship between his current hypertension and the presumed herbicide exposure in service is one that extends beyond an immediately observable cause-and-effect relationship that a lay witness is capable of identifying. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Moreover, the well-reasoned opinion of the trained health care provider in this case is of greater probative weight than the more general lay assertions of the Veteran. Again, the Veteran's lay assertions are found to be of diminished reliability because they are internally inconsistent and in conflict with other evidence. The Board finds the opinion of the December 2012 examiner to be more probative. The VA examiner is a medical professional who reviewed the claims file and considered the reported history. The examiner used his expertise in reviewing the facts of this case and determined that the current hypertension was unrelated to service. . Finally, the Board has considered the articles submitted by the Veteran regarding herbicide exposure and hypertension. This evidence, however, does not address the facts that are specific to this Veteran's case. As such, the Board finds that the information reflected in the submitted articles is not probative of the medical questions at issue in this appeal. In reaching this decision, the Board notes that, as the preponderance of the evidence is against the Veteran's claim, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. REMAND After carefully considering the record, the Board finds that the claim of service connection for an innocently acquired psychiatric disorder must be remanded for further development. Specifically, the Board finds that an additional medical opinion is needed to properly adjudicate the Veteran's claim. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). The record shows the Veteran has received various psychiatric diagnoses, including a diagnosis of PTSD. See November 2012 VA treatment record. During the pendency of the appeal, VA amended its rules for adjudicating disability compensation claims for PTSD contained at 38 CFR § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. This revision adds to the types of claims the VA will accept through credible lay testimony alone, as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify a Veteran's account, so long as the stressor is consistent with the circumstances of the Veteran's service and is not rebutted by clear and convincing evidence to the contrary. VA's specific PTSD regulation, § 3.304(f), previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to accept the occurrence of the claimed in-service stressor. Effective on July 10, 2010, under 38 C.F.R. § 3.304(f), service connection for PTSD requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The following provisions apply to claims of service connection of PTSD diagnosed during service or based on the specified type of claimed stressor: (3) If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or one with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The Veteran in this case receives consideration under the amended version of 38 C.F.R. § 3.304(f) because his claim was appealed to the Board prior to July 13, 2010, the date VA amended the regulation, but not decided by the Board as of July 13, 2010. In various statements, including June 2009, August 2012, and April 2013, the Veteran has attributed his psychiatric symptoms to his "experiences in Vietnam." In a November 2012 VA treatment record, he reported that he "served in Vietnam and was exposed in combat to mortar or other attacks that threatened his and others['] welfare and safety with [the] potential of serious injury." CAPRI Records, p. 23/41. His DD Form 214 and personnel records do not indicate receipt of such combat-related citations as the Purple Heart Medal or the Combat Infantryman Badge. Nonetheless, he did serve in Vietnam from August 24, 1968 to September 11, 1969. A VA examination has not been afforded. In light of the amended regulation, the Board finds a VA examination is necessary to fully adjudicate the claim. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should have the Veteran scheduled for a VA examination to ascertain the nature and likely etiology of the claimed psychiatric disorder. The examiner is to be provided access to the claims folder and Virtual VA in connection with the evaluation. Any and all indicated studies deemed necessary by the examiner should be accomplished. On examination, the examiner should identify any innocently acquired psychiatric disability, to include PTSD, as shown by the evidence of record. After examining the Veteran and reviewing the claims file, the examiner should opine on whether any current disability manifested by PTSD are related to his fear of in-service hostile military or terrorist activity during service. In the alternative, the examiner is asked to express an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any other current psychiatric disability had its clinical onset during service or otherwise is related to an event or incident of the Veteran's period of active service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an adequate rationale for all opinions expressed and conclusions reached. If any opinion cannot be provided without resort to speculation, the examiner should state why this is so. 2. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. After the requested examination has been completed, the RO should review the examination report to ensure it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence on file. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. This SSOC should set forth the provisions of the amended version of 38 C.F.R. § 3.304, Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs