Citation Nr: 1328289 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-20 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include depression. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to February 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over these matters has since been transferred to the RO in North Little Rock, Arkansas. The Veteran appeared at a January 2011 hearing before the undersigned and a transcript of that hearing is of record. FINDINGS OF FACT 1. The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed psychiatric disability and service. 2. The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed hypertension and service. CONCLUSIONS OF LAW 1. The Veteran's psychiatric disability was not incurred or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2012). 2. The Veteran's hypertension was not incurred or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting a decision, there is no need to discuss, in detail, every piece of evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (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 the evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed . Timberlake v. Gober, 14 Vet. App. 122 (2000). 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 Veteran. 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. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). When VA receives a complete or substantially complete application for benefits, it must notify the veteran 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 veteran is expected to provide. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the initial adjudication of the Veteran's claim, a letter dated July 2009 was sent to the Veteran in accordance with the duty to notify. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, the July 2009 letter informed the Veteran of information and evidence necessary to substantiate the claims, information and evidence that VA would seek to provide, information and evidence that the Veteran was expected to provide, and information regarding the process by which initial disability ratings and effective dates are established. The Board finds that the duty to notify has been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service medical records and post-service private medical treatment records have been obtained, to the extent available. 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 (2007). The Veteran was provided with a VA psychiatric examination in August 2010, and an addendum opinion was offered in September 2010. The Veteran received an examination of his hypertension in July 2010. The examiners reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board finds that those examinations are adequate for the purpose of rendering a decision. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran presented testimony before the undersigned Veterans Law Judge at a January 2011 videoconference hearing, and a transcript of that hearing is of record. The Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that the duties to notify and assist have been met, and the Board will proceed to a decision. Presumption of Soundness There is some suggestion in the evidence of record that the Veteran's psychiatric disability and hypertension may have pre-existed service. The Board will therefore discuss the presumption of soundness with respect to those disabilities. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-03 (July 16, 2003). Only conditions recorded in examination reports are to be considered as "noted." 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). A history of pre- service existence of a condition recorded at the time of examination does not constitute a "notation" of the condition. 38 C.F.R. § 3.304(b)(1) (2012). While a history of the pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such condition, that history is to be considered with all other material evidence when determining whether a condition pre- existed active duty service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). Turning to whether the Veteran was in sound condition at service entrance, the Board observes that the Veteran did not self-report any problems relating to either hypertension or depression at service entrance. In the Report of Medical Examination completed at service enlistment, the Veteran was noted to be psychiatrically normal and no hypertension was noted. In the Veteran's Report of Medical History completed at service enlistment, the Veteran denied ever having experienced depression or excessive worry or nervous trouble of any sort. The Veteran also denied ever having experienced high blood pressure. In a February 1978 Report of Medical Examination, the examiner noted that the Veteran was psychiatrically normal, and no hypertension was noted. In a February 1978 Report of Medical History, the Veteran denied ever having experienced depression or excessive worry or nervous trouble of any sort. In a December 1982 periodic examination, the Veteran denied experiencing depression or excessive worry, or nervous trouble of any sort. The Veteran denied experiencing high or low blood pressure. The Veteran further indicated that he had never been treated for a mental condition. In a December 1982 Report of Medical Examination, the examiner noted that the Veteran was psychiatrically normal, and no hypertension was noted. Thus, upon review of the evidence of record, the Board finds that the presumption of soundness on induction as to mental disorders and hypertension attaches. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The Board acknowledges that the Veteran has alleged, for example in his January 2011 hearing before the undersigned, that he experienced depression and hypertension before entry into active duty service. Despite that allegation, without medical evidence demonstrating treatment for either hypertension or a psychiatric disorder before military service, the Board concludes that there is insufficient medical evidence indicating that the disabilities pre- existed the Veteran's period of service, and the presumption of soundness has not been rebutted. Service Connection With the Veteran presumed to be in sound condition at induction, the Board's analysis turns to whether the Veteran has a psychiatric disability or hypertension as a result of active duty military service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (indicating that, in cases in which the presumption of soundness cannot be rebutted, a claim for service connection based on aggravation is converted into a claim for service connection based on service incurrence). In general, service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." For certain chronic diseases set forth in 38 C.F.R. § 3.309(a), a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension and psychoses are among the chronic diseases set forth in 38 C.F.R. § 3.309(a), and it therefore may be established based on a continuity of symptomatology. Furthermore, hypertension and psychoses can be presumed service-connected if manifest to a compensable degree within one year following separation from service. 38 C.F.R. §§ 3.307, 3.309 (2012). Regarding the presence of a current disability, the medical records demonstrate that the Veteran has been diagnosed with depression and essential hypertension. Therefore, a current disability is shown. With respect to an in-service disease or injury, the Veteran is competent to testify as to his own observable symptomatology and in-service experiences. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has alleged, for example at his January 2011 hearing before the undersigned, that he suffered from both a psychiatric condition and hypertension during service, but the symptoms associated with those conditions were suppressed in-service because he took medication from a private physician to treat the conditions. The Board finds that assertion to inconsistent with the evidence of record because the Veteran consistently denied, on multiple occasions, having ever received treatment for either a psychiatric condition or hypertension during service. Because his current statements are inconsistent with statement made during service, the Board finds those statements not credible. In the Report of Medical Examination performed at service enlistment, the Veteran was noted to be psychiatrically normal and no hypertension was noted. In the Veteran's Report of Medical History performed at service enlistment, the Veteran denied ever having experienced depression or excessive worry or nervous trouble of any sort. The Veteran also denied ever having experienced high blood pressure. In a February 1978 Report of Medical Examination, the examiner noted that the Veteran was psychiatrically normal, and no hypertension was noted. In a February 1978 Report of Medical History, the Veteran denied ever having experienced depression or excessive worry or nervous trouble of any sort. In a December 1982 periodic examination, the Veteran denied experiencing depression or excessive worry, or nervous trouble of any sort. The Veteran denied experiencing high or low blood pressure. The Veteran further indicated that he had never been treated for a mental condition. In a December 1982 Report of Medical Examination, the examiner noted that the Veteran was psychiatrically normal, and no hypertension was noted. The Veteran's service medical records are otherwise silent for any complaint of or treatment for symptoms associated with either a psychiatric condition or hypertension. In July 2009, Dr. F.B. stated that he treated the Veteran in 1977 for high blood pressure and depression. Dr. F.B. noted that he closed his medical practice in 1977 and no longer had access to the Veteran's medical records. In May 2010, Dr. F.B. stated that he remembered treating the Veteran for hypertension and depression in the fall of 1977. Though the Board has considered the assertions of Dr. F.B. that he treated the Veteran for the claimed conditions during service, it affords Dr. F.B.'s statements little probative weight. The Board finds it to be highly unlikely that the Veteran would have consistently denied having received treatment for the claimed conditions during service had he been receiving medical care for these conditions from Dr. F.B. Furthermore, with no medical records to support the recollection of having treated the Veteran some 36 years ago, the Board affords the recollection of Dr. F.B. with little probative weight. Accordingly, the Board finds that the credible evidence of record does not support a finding of an in-service disease or injury, and the Veteran's claims fail on this basis alone. As the Veteran has failed to show either a psychiatric condition or hypertension in service or within one year following service, the Board finds the remaining question of medical nexus to be irrelevant. However, the evidence of record also does not include any competent evidence showing that any current psychiatric disability or hypertension is related to the Veteran's service. Therefore, the claim would fail on that basis also. An examination is not needed because the credible evidence does not show any event, disease, or injury during service. 38 C.F.R. § 3.159 (2012). The Board finds that the preponderance of the evidence is against the claims for service connection for a psychiatric disability and hypertension, and the claims must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a psychiatric disability is denied. Service connection for hypertension is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs