Citation Nr: 1327449 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 08-00 261A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension to include as secondary to anxiety disorder, not otherwise specified, with cognitive deficits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had two days of active military service from November 26-28, 1976, and additional periods of active duty for training (ACUDTRA) and inactive duty training (INACDUTRA) in the National Guard. This appeal to the Board of Veterans' Appeals (Board) is from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for hypertension. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). This case was previously before the Board in August 2010, July 2012, and March 2013. The case has been returned to the Board for further appellate review. FINDING OF FACT Hypertension did not have its onset during active duty or within the initial year after separation, is not related to any period of active service, and is not due to or the result of a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in May 2006, September 2008, September 2010, and July 2012 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a May 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional medical records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. In February 2007, the Social Security Administration advised that the records pertaining to the Veteran are unavailable. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in November 2010, August 2012, and May 2013; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The May 2013 VA examiner reviewed the claim file and the rationale provided is based on objective findings and reliable principles, and consistent with both the November 2010 and the August 2012 VA opinions. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d) (2012). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131. Active duty for training is defined, in part, as full-time duty in the Armed Forces performed by Reserves or National Guard members for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty for training is generally duty (other than full-time duty) prescribed for Reserves or performed by a member of the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Annual training is an example of active duty for training while weekend drills are inactive duty. VA's Office of General Counsel has defined "injury" as harm resulting from an external trauma, while "disease" is defined as some type of internal infection or degenerative process. VAOPGCPREC 04-2002 (May 14, 2002). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Analysis The Veteran contends that his current hypertension is secondary to anxiety disorder, for which service connection has been established. The November 2010 VA examination report notes the Veteran's history of heart disease is not known to be caused by anxiety conditions. The examiner concluded that it is less than likely that hypertension is proximately due to or a result of service-connected anxiety disorder. The August 2012 VA examiner reported that the Veteran has had hypertension for many years, and although the exact date of onset was noted to be unknown, the examiner determined the Veteran had recognized risk factors for the development of hypertension. No objective evidence showing the Veteran's hypertension is proximately due to his service-connected anxiety disorder was noted. The examiner concluded that it is less than likely that the Veteran's hypertension is due to or a result of service-connected anxiety disorder. The VA opinion provided in May 2013 is that it is unlikely that the Veteran's hypertension has been aggravated by his service-connected anxiety disorder. It was noted that a review of literature did not support aggravation of existing hypertension by anxiety disorder. The Veteran is competent to report his symptoms, which are in the realm of the Veteran's personal knowledge and experience. See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). In reaching a determination, however, the Board has accorded more probative value to the VA opinions to the effect that the Veteran's hypertension was not caused or aggravated by service-connected disability. The evidence does not include any medical evidence demonstrating a link between the Veteran's hypertension and service-connected anxiety disorder. The only medical opinions of record addressing this point are against the claim. The Board acknowledges that the Veteran contends that such a link exists. However, the Veteran has not provided any evidence in support of this contention, and as a layperson, he is not competent to make such a determination. The competent evidence does not suggest that a service-connected disability caused or aggravated the Veteran's hypertension; thus, service connection for hypertension on a secondary basis is not warranted. With respect to direct service connection, and although the Veteran is competent to report in-service experiences, competence and credibility are to be distinguished. Although the Veteran asserted Vietnam service in his April 2005 correspondence, service records are negative for service in Vietnam and a May 2007 Personnel Information Exchange System (PIES) response verifies that the Veteran did not have Vietnam service. Regardless, hypertension is not on the list of diseases presumptively associated with exposure to herbicide. See 38 C.F.R. §§ 3.307, 3.309. The service records are negative for a diagnosis of hypertension. A November 27, 1976, service treatment record reflects blood pressure was 118/82. Although the record reflects periods of active duty for training (ACUDTRA) and inactive duty training (INACDUTRA) in the National Guard from 1961 to 1979, the records are negative for a diagnosis of hypertension. A December 1976 treatment record shows blood pressure was 132/86. A November 1977 VA examination report reflects blood pressure was 120/80, and on VA examination in November 1979, VA blood pressure was 130/80. Given that hypertension is a disease process, rather than an injury, service connection for hypertension is not warranted in association with any period of INACDUTRA. There is no competent, objective evidence of hypertension during service or within the initial year of separation from active duty, or during any other period of active service. Service connection for hypertension on a direct basis is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, service connection for hypertension is not warranted. ORDER Service connection for hypertension is denied. ____________________________________________ M.G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs