Citation Nr: 1329205 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-48 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a vascular disorder, as secondary to hypertension. 3. Entitlement to service connection for hyperlipidemia. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The appellant served on active duty from June 1970 to January 1972. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an April 2008 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO). The Virtual VA claims file has been reviewed. The Board notes that, pursuant to his request in his December 2009 substantive appeal, the Veteran requested a hearing before the Board; however, in July 2013, the Veteran withdrew the Board hearing request. As such, the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e) (2012). FINDINGS OF FACT 1. Hypertension was not manifest during service and hypertension was not manifest within one year of separation. 2. Hypertension is not attributable to service. 3. A vascular disorder is not attributable to service or a service connected disease or injury. 4. Hyperlipidemia is not a disability for VA purposes. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. A vascular disorder is not proximately due to or a result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 3. Hyperlipidemia was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter dated in May 2007, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claims for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of private and VA post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded a VA examination responsive to the claim under 38 U.S.C.A. § 1151. The opinions was provided by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board finds that the opinion is adequate. The Veteran has not been examined by VA in connection with his claims for service connection of a vascular disorder and hyperlipidemia; however, no examination or nexus opinion is required regarding the claim for a vascular disorder as the weight of the evidence demonstrates no related injury, disease, or event during service; therefore, no examination or nexus opinion is required, and any opinion would be speculative, as there is no injury, disease, or event during service to which such a currently diagnosed disorder could be related. And no examination is required for the claim of service connection for hyperlipidemia; as will be explained below, this is a laboratory finding and not a disability for VA purposes. For these reasons, a remand to provide the Veteran with a medical examination and/or obtain a medical opinion is not required with respect to the claims for service connection of a vascular disorder and hyperlipidemia. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Additionally, the Veteran has not alleged that any opinion is inadequate to decide the current claims, so it is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a 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-the so- called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, hypertension is presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. As hypertension is considered to be a chronic disease for VA compensation purposes, 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), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis for Service Connection Hypertension The Veteran had no complaints, treatment, or diagnoses of hypertension during service. A June 1970 Report of Medical Examination shows that the Veteran's blood pressure was 130/80; he denied experiencing high or low blood pressure. At his January 1972 separation examination, his blood pressure was 140/80. The heart, vascular system and chest x-ray were normal. Private treatment records from Willow Valley Medical Center show that the Veteran was first diagnosed with hypertension in March 1989; his blood pressure reading was 150/96. Private treatment records from Southwest Cardiovascular show treatment for shortness of breath, hypertension, and chest pain. A September 2006 report indicates that the Veteran had a history of smoking a pack of cigarettes per day for 35 years, a family history of high blood pressure, and was overweight. A December 2006 letter from his treating provider states that the Veteran had blood pressure of 130/80 at entrance into service and 140/80 at separation; his physician opined that "[s]ome of this may be as a result of the stress in the service" and reported that his blood pressure is now 140/90 with medication. A June 2007 letter states that the Veteran had vascular sclerotic problems with his kidney, severe hypertension, and hyperlipidemia, and asserted that the Veteran "already had some of these problems when he was discharged." The Veteran was afforded a VA examination in July 2012. According to the report, he had a diagnosis of hypertension. The VA examiner reviewed the Veteran's in-service blood pressure readings, including those recorded at his military examinations, and his claims file. The VA examiner also evaluated the Veteran and took his blood pressure readings twice a day for three days, as well as took three readings on the examination date. The VA examiner concluded that the Veteran did not have any evidence of hypertension while in service, and no evidence of hypertension was found until approximately 1990. The VA examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner noted that the Veteran had low blood pressure of 90/60 in November 1971, and that it was unlikely that the Veteran could have developed hypertension in the two months prior to discharge. The VA examiner also noted that the Veteran had a separation examination reading of 140/80, but that this reading, even if considered elevated, would not meet the requirement for a diagnosis of hypertension. The VA examiner concluded that there is no evidence of hypertension while in service or aggravation of pre-existing hypertension, as there was no pre-existing hypertension. In this regard, the Board observes that the Veteran has claimed that his hypertension is due to service. Specifically, the Veteran asserts that his hypertension began during service and that a blood pressure reading of 140/80 at separation demonstrates in-service incurrence. The Veteran's claim is limited neither by the theory that he advances nor the precise disability he identifies. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (what constitutes a claim cannot be limited by a lay Veteran's assertion of his or her condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). In this case, the Veteran's claim must be denied because his hypertension is neither caused nor aggravated by a disease or injury in service. As the Veteran has been diagnosed with hypertension, the provisions of 38 C.F.R. § 3.303(b) are potentially applicable. Here, no cardiovascular pathology, including hypertension, was "noted" during service and no characteristic manifestations of hypertension were identified during service. Therefore, section 3.303(b) does not assist the Veteran. The Board reiterates that hypertension was not shown in service or within one year of separation. Rather, the Veteran's blood pressure was 140/80 upon examination at separation. We also note that the Veteran denied a history of pertinent pathology at separation and that a cardiovascular evaluation was also normal. The Veteran's argument that it was reported and noted at separation is inconsistent with the separation examination. To the extent that he has reported that he had chronic hypertension that started in service and continued, such pleading is not credible in light of the normal vascular system and the pressure of 140/80 at separation. Furthermore, there is every indication that there were no symptoms leading to a diagnosis until 1989. The Veteran is competent to report his experiences in service and to state that he experiences symptoms, but these statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board finds that the specific findings of the July 2012 VA examiner, indicating that the Veteran's hypertension is not related to his service, are of greater probative weight than the more general lay assertions of the Veteran, even assuming those lay assertions were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau at 1377 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Here, there is positive and negative evidence. The Board is presented with the lay pleadings, his reports to the VA examiners and private clinicians, as well as the opinion of the clinicians and his VA examiners. Since at least one private clinician has attributed the Veteran's hypertension to in-service events, the Veteran's opinion is competent. However, we find the positive medical evidence to be of little probative value. We also note that a close reading establishes that Dr. J did not actually establish that the Veteran had hypertension during service. Rather, he correctly noted that the readings at separation and entrance were not the same and that the separation reading was higher than the initial reading. This truism does not establish the presence of an abnormality, disease or pathology during service. To the extent that the doctor requests that the change during service should be considered, we have considered such fact. However, a change in a pressure reading does not establish the presence of hypertension or any disease process. See Note 1 Diagnostic Code 7101 which establishes a threshold reading of 90mm diastolic and 160mm systolic. The Veteran did not have any threshold readings during service and Dr. J does not otherwise state that he Veteran did have hypertensive readings during service. Elsewhere, DR. J reported that the Veteran has vascular sclerotic problems with his kidney, hypertension and hyperlipidemia and that he already had some of these problems when he was discharged. However, the statement borders on the meaningless and he does not establish which, if any processes were actually present during service. Regardless the report of hypertension since service is inconsistent with the normal cardiovascular findings at separation and the reading of 140/80. To the extent that there are lay and medical opinions linking the remote onset of hypertension to the stress of service, we have found that the appellant is not a credible historian and that a medical opinion based upon an inaccurate factual predicate and without any rationale, is equally inaccurate. The Veteran's opinion is less credible and probative than the negative medical evidence. The July 2012 VA examiner found that, as the Veteran's hypertension did not develop until many years after service, it was not likely related to the Veteran's service; the VA examiner also found that the Veteran's elevated blood pressure readings in service did not meet the requirement for a diagnosis of hypertension. This opinion is reasoned and consistent with the actual factual record. We find this opinion to be highly probative. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Although there are letters dated in 2006 and 2007 from the Veteran's treating provider, stating that the Veteran's hypertension was due to the stress of serving, the Board is not bound to accept medical opinions that are based on a history based upon an inaccurate factual background. Furthermore, the July 2012 VA examiner reviewed the claims file, examined the Veteran, and reviewed the pertinent medical literature prior to providing a clear medical opinion that the Veteran's hypertension began many years after service and is unrelated to the single elevated blood pressure reading in service. The VA examiner noted that the Veteran was not treated for high blood pressure for many years after service, and that there is no relationship between the Veteran's service and his current hypertension. As the July 2012 VA examiner explained the reasons for his opinion based on an accurate characterization of the evidence of record, this opinion is entitled to substantial probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). To the extent that the Veteran contends that his hypertension is related to his service, the probative value of his general lay assertions is outweighed by the specific, reasoned opinion of the July 2012 VA examiner. The weight of the evidence therefore reflects that his hypertension is unrelated to service. In sum, hypertension was not manifest during service and hypertension was not manifest within one year of separation. Rather, there was a remote post-service onset. There is no reliable evidence linking the remote hypertension to service or to a service-connected disease or injury. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for hypertension. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Vascular Disorder The Board observes that the Veteran, in several statements and his notice of disagreement, indicated that his claim for service connection for hypertension is based upon a grant of service connection for hypertension. As the Board has found that service connection is not warranted for hypertension, there remains no further basis for consideration of the Veteran's claim for a vascular disorder under 38 C.F.R. § 3.310, as secondary to hypertension. Nevertheless, the Board notes that the Veteran's service treatment records do not show that the Veteran complained of or was treated for a vascular disorder during his military service, or that he had symptoms of a vascular disorder during service. Rather the vascular system at separation was normal. There is simply no indication of any related problems during service. The fact that there has been no demonstration that the Veteran's hypertension is attributable to his service means that he cannot link his vascular disorder, if any, to his service - via his hypertension. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. That is to say, the elimination of one relationship to service, as the supposed precipitant, necessarily also eliminates all associated residual conditions. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (in "order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'") Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). The record does establish that the appellant was evaluated for a possible murmur at entrance. However, no murmur was found at that time or at any time during service. At best, this was a meaningless, unconfirmed suspicion. The record does establish that DR. J reported that the Veteran has vascular sclerotic problems with his kidney, hypertension and hyperlipidemia and that he already had some of these problems when he was discharged. However, the statement borders on the meaningless as he does not establish which, if any, processes were actually present during service. When we compare this unsupported statement against the service records, we find this generic, non- specific report of Dr. J to be not credible. Therefore, entitlement to service connection for vascular disease must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hyperlipidemia The Veteran has claimed service connection for hyperlipidemia. Private treatment records from Willow Valley Medical Center show that the Veteran was assessed as having hyperlipidemia. Under applicable regulations, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2012); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). An elevated cholesterol level represents only a laboratory finding, and not an actual disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20440, 20445 (May 7, 1996). A clinical finding such as hyperlipidemia, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Thus, there is no current disability manifested by hyperlipidemia. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"); see also Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) (recognizing that a symptom of pain is not a disability). The Court has held that where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, as there is no basis in the law to grant the Veteran's appeal, the claim for service connection for hyperlipidemia must be denied. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a vascular disorder, as secondary to hypertension, is denied. Entitlement to service connection for hyperlipidemia is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs