Citation Nr: 1327457	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  10-06 142	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for hypertension, to include as due to exposure to herbicides.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1965 to July 1968, to include duty in Vietnam.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  The Veteran filed a notice of disagreement (NOD) with this determination in March 2009, and timely perfected his appeal in February 2010.

In December 2012, the Board remanded the issue on appeal for further examination. 
This development has now been completed and the claim is ready for review. 

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  Hypertension was not present in service, was not manifested within one year thereafter, and is not otherwise related to service.

2.  The Veteran's hypertension is not presumed to be etiologically related to in-service exposure to an herbicide agent.


CONCLUSION OF LAW

The criteria for service connection for hypertension, to include as due to exposure to herbicides, have not been met.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 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

I.  Duties to Notify and Assist

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  

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 in accordance with 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).  

Here, the duty to notify was satisfied by way of letters sent to the Veteran in November 2006 and July 2008 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter.  The letters informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence.  The letters also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA medical records and providing the Veteran with a VA examination in April 2013.  Additionally, the Veteran has not indicated that he has received additional treatment for hypertension.  Specifically, in a May 2013 statement, the Veteran reported that he did not have any additional evidence regarding the claim on appeal.  The Board thus concludes that there are no additional records outstanding with respect to that claim.  Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

II. Service Connection

Legal Criteria

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).

To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

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.  Certain listed disabilities, to include hypertension, may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).

Hypertension means persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90.  See Dorland's Illustrated Medical Dictionary at 889 (30th ed. 2003).  For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90.  See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  

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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran.




Background

The Veteran contends that he developed hypertension as a consequence of his active military service.  Specifically, he has asserted that his hypertension is due to exposure to herbicides in Vietnam.  Additionally, the Veteran has stated that he had elevated blood pressure readings at the time of his discharge, and it continued to worsen over the years until clinical hypertension developed.  

At the July 1965 enlistment examination, the Veteran was recorded as having a blood pressure reading of 114/78.  The Veteran's service treatment records are void of any complaints of or diagnosis for hypertension or other cardiovascular problems during the three years of active duty.  The Veteran's blood pressure reading is somewhat hard to discern on the May 1967 separation examination report.  It appears as if the reading was either 126 or 136/62.  Given that the Veteran has asserted having elevated readings (but not clinical hypertension) since service, and given that there is nothing of record to place the Veteran's assertions in doubt as to credibility, when this evidence is viewed in the light most favorable to the Veteran, it can be presumed that the reading recorded was 136/62.  This is not enough to qualify as clinical hypertension pursuant to VA regulations; however, as asserted by the Veteran, it does show an increase in blood pressure from the time of enlistment.  

The Veteran has been diagnosed as having clinical hypertension, and private clinical records show that there has been medication prescribed.  In October 1998, a private treatment record indicated high blood pressure readings.  The physician noted that the Veteran was not on antihypertensive medication, and recommended medication for the Veteran's high blood pressure at that time.  In December 1998, the Veteran's blood pressure was recorded as 140/92.  The physician recommended that the Veteran continue taking medication in order to control the level of blood pressure for six months.  A March 2009 VA examination listed hypertension as a diagnosis, but did not offer an opinion as to the severity or etiology of the condition.  

The Veteran was afforded a VA examination in April 2013 to assess his hypertension.  The VA examiner noted a diagnosis of hypertension, with a reported date of diagnosis in the late 1980s.  The examiner noted that the claims file was reviewed.  After examining the Veteran, the VA examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The Veteran had one blood pressure reading that was higher than 120/80 (normal).  This was not sufficient to establish a causal or other relationship to his current hypertension.  It was normal to have fluctuations in blood pressure, which was why one isolated slightly high blood pressure reading was not abnormal nor did it establish a relationship to a chronic condition diagnosed years later. 

Analysis 

The Board finds that the weight of the competent evidence shows that the Veteran is not entitled to service connection for hypertension.  Although he has a current diagnosis of hypertension, the existing medical evidence does not show that this condition was manifested in service, within a year from being discharged from service, or is otherwise related to service, to include herbicide exposure.  

First, the Board will discuss entitlement to service connection on a presumptive basis.  Certain Veterans - namely, those who served in Vietnam between January 9, 1962, and May 7, 1975 - are presumed by law to have been exposed to herbicides during service.  38 U.S.C.A. § 1116.  Generally, the presumption of herbicide exposure does not apply to Vietnam-era Veterans unless they served within the land borders of Vietnam during the prescribed period.  Haas v. Peake, 525 F.3d 1168, 1172 (Fed. Cir. 2008) (holding that Veterans who served on ships off the coast of Vietnam but who never set foot within the land borders of Vietnam are not entitled to the presumption of herbicide exposure).

Similarly, certain diseases are presumed by law to have been caused or aggravated by herbicide exposure.  38 U.S.C.A. § 1116; see also 38 C.F.R. §§ 3.307, 3.309.  In August 2010, the Secretary expanded the list of diseases subject to that presumption, to include ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina).  75 Fed. Reg. 53, 202 (August 31, 2010) (amending 38 C.F.R. § 3.309(e)).  

The Personal Information Exchange System documented that Veteran served in the Republic of Vietnam during the Vietnam era from May 1966 to April 1968.  There is no affirmative evidence in the record to establish that the Veteran was not exposed to herbicides during service.  Therefore, he is entitled to a presumption of exposure to herbicide agents.

However, even though it is presumed that the Veteran was exposed to herbicide agents while serving in Vietnam, in order for him to be entitled to presumptive service connection on the basis of that presumed Agent Orange exposure, the record must also establish that he has a disease to which this presumption applies.  Unfortunately, hypertension is not on the list of presumptive conditions associated with exposure to Agent Orange or other herbicides.  See Notice, 68 Fed. Reg. 27630-27641 (2003).  He must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), and he clearly is not.  See Brock v. Brown, 10 Vet. App. 155, 162 (1997).  Therefore, it cannot be presumed he has hypertension as a result of exposure to herbicide agents.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  

Concerning in-service incurrence, the Veteran's service treatment records are completely unremarkable for any relevant complaints, treatment, or diagnosis of hypertension.  Although he had an elevated blood pressure reading of 136/62 at discharge, it does not qualify as clinical hypertension pursuant to VA regulations. 
There is no objective indication of hypertension while he was in service.  This is probative evidence against the notion that the Veteran has hypertension as a direct result of disease or injury incurred in or aggravated by his military service.  See Struck v. Brown, 9 Vet. App. 145 (1996).

Additionally, there is no medical evidence of record showing that hypertension was manifested during his first post-service year.  Additionally, private treatment records do not note a history of elevated blood pressure and hypertension medication prescribed until October 1998.  Therefore, there is no competent and credible evidence of record showing that hypertension was manifested during the Veteran's first year following discharge from active duty, and presumption service connection for hypertension as a chronic disease is not warranted.  See 38 C.F.R. §§ 3.307, 3.309.

The Veteran also has failed to provide any objective indication of hypertension until October 1998 private treatment records, more than three decades after his military service ended.  The lapse of so many years after his separation from service and the first documented suggestion of this claimed disorder is also probative evidence to be considered in determining whether this claimed disability may be traced back to his military service.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

Of equal or even greater significance, while the Veteran has submitted medical evidence indicating he has been diagnosed with hypertension, there simply is no medical evidence of record etiologically linking hypertension to the Veteran's military service.  As previously mentioned, the April 2013 VA examiner concluded that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The Veteran had one blood pressure reading that was higher than 120/80 (normal).  This was not sufficient to establish a causal or other relationship to his current hypertension.  It was normal to have fluctuations in blood pressure, which was why one isolated slightly high blood pressure reading was not abnormal nor did it establish a relationship to a chronic condition diagnosed years later.  As such, entitlement to service connection on a direct basis must be denied.

The Board has carefully considered the Veteran's assertions that his hypertension is related to his active duty, to include exposure to herbicide agents.  However, as a layperson with no demonstrated medical training or experience, he is not competent to give a medical opinion on the diagnosis, causation, or aggravation in the context of the particular claim at issue.  See Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  The Board acknowledges that the Veteran is competent to give evidence about the symptoms that he has experienced.  Layno v. Brown, 6 Vet. App. 465 (1994).  Competency must be distinguished, however, from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67 (1997). 

The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  Thus, the Board rejects the Veteran's unsubstantiated lay contentions because medical evidence in the file shows his hypertension did not have its onset in-service, but first manifested more than three decades after service.

The VA examiner's opinion noted above is based on review of the claims folder, including the Veteran's service treatment records, and his opinion thoroughly discuss the Veteran's pertinent in-service and post-service medical records.  The VA examiner offered a detailed explanation of the rationale for the opinion rendered that incorporates both the facts of the Veteran's case and the pertinent medical principles.  Given the VA examiner's access to the claims folder and the thoroughness and detail of the opinion, the Board finds this opinion to be highly probative in determining whether service connection for hypertension is warranted.

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for hypertension, to include as due to exposure to herbicides, must be denied.


ORDER

Service connection for hypertension, to include as due to exposure to herbicides, is denied.


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

Department of Veterans Affairs