Citation Nr: 1327157	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  09-18 907A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for hypertension.

2. Entitlement to service connection for migraine headaches, to include as secondary to sinusitis.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

H. Yoo, Counsel




INTRODUCTION

The Veteran had active duty service from May 1987 to April 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA).  

The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal.

The issue of entitlement to service connection for migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

There is no diagnosis of hypertension.


CONCLUSION OF LAW

The criteria for establishing service connection for hypertension have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); 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 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. 

Prior to initial adjudication of the Veteran's claim, in October 2007, the Veteran submitted a signed statement acknowledging that the VA notified him of the evidence or information needed to substantiate his claims.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  This notice letter indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining the evidence.  The notice letter also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the claims file.  The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran was afforded a VA examination in November 2007 and the results of which have been included in the claims file for review.  This VA examination involved review of the claims file and thorough examinations of the Veteran.  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim.

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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.

II. Merits of the Claim

Governing Rules and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 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). 

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Certain chronic diseases, such as hypertension, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. § 3.309(a).

Here, the Board notes that the Veteran is claiming entitlement to service connection to hypertension.  Hypertension is subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a).  As such, given the existence of a diagnosis, an appellant may establish service connection solely based on lay statements of continuity of symptomatology since service.

For reference purposes, VA defines hypertension as being present if the diastolic blood pressure is 90 mm Hg or more or the systolic pressure is 140 mm Hg or more, or if both are present.  See Veteran Benefits Administration (VBA) Training Letter 00-07 (July 17, 2000).  In isolated systolic hypertension, the systolic pressure is 140 mm Hg or more, but the diastolic pressure is less than 90 mm Hg.  Id.  Multiple blood pressure readings are required to confirm the diagnosis of hypertension with VA's rating schedule requiring 2 or more readings on at least 3 different days.  Id.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).

A 10 percent rating is warranted for hypertensive vascular disease (hypertension and isolated systolic hypertension) where diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or where the individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control.  38 C.F.R. § 4.104, Diagnostic Code 7101.

The Board has thoroughly reviewed all the evidence in the appellant'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, the evidence submitted by the appellant or on his behalf.  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 appellant 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 appellant). 

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, 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 a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



Factual Background and Analysis

According to the evidence of record, the Veteran's in-service treatment records are absent for any treatment or diagnosis of high blood pressure.  In March 2004, the Veteran stated the his blood pressure has always been a little high.  The Board notes there is some evidence of elevated blood pressure readings.  Namely, the blood pressure in October 2007 was 150/90 and 151/90 in December 2007.  However, there is no evidence the Veteran was diagnosed with hypertension or was prescribed medication for treatment. 

In November 2007, the Veteran underwent an examination at Camp Lejeune where the examiner noted the condition existed for four years but it has not been diagnosed by a doctor and there is no treatment or symptoms. The Veteran's blood pressure was the following:


Lying Down
Sitting
Standing
Day 1
142/86 mmHg
140/90 mmHg
136/94 mmHg
Day 2
120/78 mmHg
110/80 mmHg
122/82 mmHg
Day 3
122/76 mmHg
116/88 mmHg
124/78 mmHg

The examiner determined that the "[e]levated blood pressure reading on day of evaluation but serial three day checks did not meet criteria for a diagnosis of hypertension at this time.  Chest x-ray showed normal findings and electrocardiogram showed normal sinus rhythm."

The Board finds that the evidence of record does not support a finding of service connection for hypertension because the evidence does not demonstrate a current disability for any of these claims.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997).  There is a current disability for VA purposes when a claimant has a disability at the time a claim is filed or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

There is no current disability as there is no diagnosis.  Again, hypertension for VA purposes is where the diastolic blood pressure is predominantly 90mm. or greater, or 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 7007 Note (1) (2012) (emphasis added).  From the readings of record, the diastolic blood pressure is not predominantly 90 mm or greater, most of the readings are below 90.  Regarding the systolic pressure, the readings are not predominantly 160 mm and over; the highest systolic reading was 142.  Accordingly, the medical evidence of record does not show a diagnosis of hypertension, or readings that indicate hypertension.  Degmetich, 104 F.3d at 1333. 

To the extent that the Veteran's request for service connection indicates a statement that he has current hypertension, this is not a diagnosis that is capable of lay observation as it requires a test and analysis of blood pressure readings, in contrast to diagnoses of tinnitus, flat feet, and varicose veins which are capable of lay observation.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) (the Federal Circuit found that under 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: a layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  

In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); McClendon v. Nicholson, 20 Vet.App. 79, 81 (2006). See also 38 C.F.R. § 3.159(c) (2009). Here, an examination is not required as it is not shown that the Veteran has the claimed disability, hypertension.

The only evidence of record in support of the Veteran's claim consists of his own lay statements.  However, the Veteran's etiological theory has not been supported by a medical professional.  The Board finds that the Veteran has been accorded ample opportunity to secure and present medical nexus evidence in his favor.  He did not do so.  See 38 U.S.C.A. § 5107(a) (It is the claimant's responsibility to support a claim for VA benefits).  Accordingly, as the lay and medical evidence of record indicate that there is no current disability; service connection for hypertension is not warranted. 

Although the Board is sympathetic to the Veteran's claim, based on the lack of objective medical evidence demonstrating a current diagnosis for hypertension, the Board concludes that the preponderance of the evidence is against granting service connection.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for entitlement to service connection for hypertension must be denied.  See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).  Should the Veteran wish for further review, he is free to resubmit his claim with any addition evidence to the RO.


ORDER

Entitlement to service connection for hypertension is denied.


REMAND

Unfortunately, a remand is required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). 

The Veteran and his representative contend, in substance, that the Veteran's migraine headaches are secondary to, or has been aggravated by his service-connected sinusitis.  Sinusitis was granted in a May 2008 rating decision, at a noncompensable rating, effective May 1, 2008.

As stated above, service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation.  See 38 C.F.R. § 3.159 (2011); see also Grivois v. Brown, 6 Vet. App. 136 (1994).

When determining service connection, all theories of entitlement, direct and secondary, must be considered.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).

The Veteran was afforded a VA examination in April 2010 where a diagnosis of migraine headaches was confirmed.  Upon examination the examiner determined that the Veteran's headaches were not caused by his maxillary sinusitis and the rationale was based on a lack of medical evidence to support such contention.  The examiner further stated that maxillary sinusitis can induce general, non specific headaches but not migraines. 

The Board finds that the April 2010 VA examination opinion addressed direct and secondary service connection in connection with the claim but did not address aggravation on a secondary basis.  It is also unclear whether the examiner reviewed the medical evidence with the Veteran's claims file prior to offering an opinion.  As such, this opinion is inadequate.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Therefore, the Veteran should be afforded a new VA examination to determine clarify the etiology of the disability.  38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one).

Accordingly, the case is REMANDED for the following action:

1. The AMC should schedule the Veteran for an examination with an appropriate specialist to determine the nature and etiology of the Veteran's migraine headaches.  The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination.  All indicated studies/tests should be performed, and all findings should be reported in detail.

2.  The examiner should provide opinions as to whether it is at least as likely as not that the Veteran's claim of migraine headaches had its onset during:

a. active service or is related to any in-service disease, event, or injury; or 

b. are secondary to, or aggravated by, any service-connected disability, namely sinusitis.

Additionally, the examiner should consider the Veteran's in-service treatment records, VA treatment records (including all prior VA Compensation and Pension examination records), and private treatment records.  Furthermore, the examiner should also discuss the Veteran's lay statements regarding history and chronicity of symptomatology when discussing the offered opinion. 

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.  However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

3. The AMC should then re-adjudicate the issues of entitlement to service connection for migraine headaches to include secondary to sinusitis.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal.  An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board for further appellate review.

The appellant 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).




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs