Citation Nr: 1326995	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  10-14 159	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for hypertension.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from November 1958 to November 1988.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In June 2013, the Board granted service connection for skin cancer, right ankle arthritis, and bilateral knee arthritis.  These issues were resolved and are no longer for consideration.  At that time, the Board also reopened a claim of entitlement to service connection for hypertension and remanded the issue for additional development.  There was substantial compliance with the remand directives and the case was returned to the Board.  

The Virtual VA and VBMS folders have been reviewed.
 
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Hypertension was first manifest during peacetime service.


CONCLUSION OF LAW

Hypertension was incurred in peacetime service.  38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012).  








REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

In light of the favorable decision to grant service connection for hypertension, a detailed explanation of how VA complied with its duties to notify and to assist is not needed.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(c).   

Laws and Regulations

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
 
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (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, 1166-67 (Fed. Cir. 2004). 

It is now well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'" King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.Cir.2006)); Davidson v. Shinseki, 581 F.3d at 1315-16 (Fed.Cir.2009) (rejecting the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis.").  When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition 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 professional.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007)).  If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan, 451 F.3d at 1334-37.

Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including hypertension, if manifest to a compensable degree within one year after discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Analysis

Service treatment records (STRs) are negative for any complaints, treatment, or diagnoses of hypertension.  Predominantly, the Veteran's blood pressure readings were not elevated during service.  However, in 1987 and 1988, STRs document several instances of elevated blood pressure readings of 122/90 (January 1987 STR), 136/90 (May 1988 STR), 130/92 (September 1988 STR), and 140/90 (August 1988 retirement examination).  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (the term hypertension means that diastolic blood pressure (i.e., bottom number) is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure (i.e., top number) is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm).  Also, in May 1988, a positive exercise test suggested the presence of asymptomatic ischemia.  Baseline blood pressure at the time was reported as 140/48 with a peak blood pressure of 230/100.  Regardless, no formal diagnosis of hypertension was rendered in the STRs and at retirement, the Veteran specifically denied having or having had high blood pressure.  

In January 1989, shortly following discharge from service, the Veteran submitted an original claim for compensation.  At that time, he claimed various disabilities, to include high blood pressure, which he reported as beginning in 1988.  

Post-service, an April 1989 VA electrocardiogram (EKG) documented a normal blood pressure reading of 120/86.  On VA examination in June 1989, the Veteran reported an unconfirmed history of high blood pressure many years ago controlled at the moment under no medications.  The Veteran was described as a heavy cigarette smoker and heavy beer drinker.  Diagnostic impression included a history of hypertension.  

In October 1989, the RO denied service connection for hypertension as not shown by the evidence of record.

The Veteran underwent a VA examination in June 1990 to evaluate the severity of peptic ulcer disease.  He was currently on Zantac and no other medications.  Blood pressure was reported as 140/80.  

A November 2001 private medical record shows that the Veteran was a new patient and was seen to establish care.  Prior medical history was recorded, but hypertension was not noted.  Objectively, the Veteran's blood pressure was elevated at 186/90.  A note dated that same day indicates that someone spoke with the Veteran regarding hypertension and a prescription for Accupril (a medication used to treat high blood pressure) was called in to the pharmacy.  A December 2001 record shows blood pressure of 178/80 and assessment included high blood pressure.  An October 2002 record shows the Veteran was requesting refills on his blood pressure medication.  He reported that he had not taken his medication for one month.  Assessment was hypertension.  Subsequent private medical records continue to show a diagnosis of hypertension.  

In October 2006, the Veteran requested to reopen his claim.  A private medical opinion from Dr. A.B., also dated in October 2006, assessed that the Veteran's STRs show that he did have a diagnosis of hypertension while on active duty, such that his current hypertension is related to service.  

In September 2007, the RO denied the claim to reopen.  The Veteran disagreed with the decision and subsequently perfected this appeal.  

On VA heart examination in October 2007, the Veteran reported that he treated for hypertension shortly after being discharged from the service and that he was diagnosed with hypertension on his discharge physical.  In rendering an opinion regarding ischemic heart disease, the examiner stated that there appeared to be no evidence of hypertension, elevated blood pressure or cardiac complaints while in active service.  

In June 2013, the Board reopened the claim.  Pursuant to its remand, a VA examination was conducted.  Although not requested by the Board, it appears that the Veteran underwent an in-person examination.  The claims file was reviewed.  The examiner noted that the Veteran was diagnosed with hypertension and treated with medication after service and has been on medications intermittently since that time.  Service records were noted to show variable blood pressure readings and the examiner set forth specific blood pressure readings from 1987 and 1988.  

The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  In support of this statement, the examiner provided the following rationale:

The majority of the veteran's blood pressures during the last year of service were in the normal range for that time period.  There is no documentation that blood pressure diagnosis was based on 2 blood pressure readings on three different days nor does the veteran's blood pressure readings meet VA disability rating criteria for high blood pressure as noted on the [Disability Benefits Questionnaire Hypertension].  Veteran himself, checked no high or low blood pressure on exit physical review of systems.  Although his blood pressure was elevated on his exit physical and had some blood pressure readings that were elevated, he also had several blood pressure readings that were normal.  Therefore, veteran would be classified as elevated blood pressure without diagnosis of hypertension as there was no consistent high blood pressure to be diagnosed with hypertension.  Also there is no documentation of a diagnosis of hypertension or documented treatment (diet, exercise or medication) in the [service medical records].  

As discussed, hypertension was not formally diagnosed during service and objective evidence does not show a confirmed diagnosis of hypertension manifested to a compensable degree within one year following discharge from service.  

Notwithstanding, service connection may be granted for disease diagnosed after discharge, when all the evidence establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d).  

The law does not require a diagnosis during service.  38 U.S.C.A. §§ 1110, 1131.  Rather, as established by regulation, there must be characteristic manifestations sufficient to identify the disease entity.  38 C.F.R. § 3.303(b).  Although Diagnostic Code 7101, Note 1 establishes a definition of hypertension for VA purposes, this definition is no different than the definition of hearing loss disability for VA purposes.  There is no requirement that such standards be met during service.  Rather, such standards must be met some point in time to establish current disability.  

Unfortunately, the recent, well reasoned VA medical opinion seems to require that the requirements of Note 1 be met during service.  Such analysis renders the medical opinion defective.  The evidence does establish that the appellant has a valid post service diagnosis of hypertension.  Thus the requirements of Note 1 are met.  Furthermore, there were numerous episodes of elevated pressure during service, to include at separation.  Finally, there is a private medical opinion linking the post service disease entity to the in-service findings.  Based upon all the evidence of record, we conclude that hypertension was first manifest during service.  In sum, the private examiner established that there were in-service characteristic manifestations sufficient to identify the disease entity.  


ORDER

Service connection for hypertension is granted.  



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs