Citation Nr: 1329640 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 05-16 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension, including as secondary to the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an increased evaluation for urethral stricture with urinary tract infections and prostatitis, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to September 1972, including service in Vietnam for which he received, among many other awards, the Purple Heart and Combat Infantry Badge. These matters initially came before the Board of Veterans' Appeals (Board) from July 2003, December 2003, August 2006 and November 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board initially considered and denied the claim for hypertension in a May 2008 decision. In a November 2009 Order, the Court granted a Joint Motion by counsel for the Veteran and VA to vacate the Board decision. In September 2010, the Board remanded the claim for service connection for hypertension for additional development. In November 2012, the Board again remanded the claim so that the July 2012 addendum opinion to the VA examination could be associated with the claims file. The case since has been returned to the Board for further appellate action. The Board notes that after associating the July 2012 addendum to the claims file the claim was not readjuicated in a supplemental statement of the case (SSOC). See 38 C.F.R. § 19.31. In this case, however, the RO previously had considered the July 2012 addendum report in the July 2012 SSOC. 38 C.F.R. § 19.31(c)(1)(noting that the AOJ does not need to issue a SSOC if the only purpose of the remand is to assemble records previously considered by the AOJ that were properly discussed in a prior SSOC). No additional pertinent evidence was associated with the claims file while on remand and accordingly another SSOC is not necessary in this matter. The August 2011 Board decision noted that the Veteran had raised a claim for clear and unmistakable error (CUE) in the February 1973 rating decision that denied service connection for prostate trouble and REFERRED the matter for appropriate action. A review of the record reflects that no action has been taken on this matter. In fact, in February 2011 the Veteran again requested that his claim for CUE in the 1973 rating decision be adjudicated. Therefore, the issue is again REFERRED to the RO for appropriate action. The claim for an increased evaluation for urethral stricture with urinary tract infections and prostatitis is being remanded and 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. FINDINGS OF FACT 1. Hypertension was not manifested during service and hypertension was not manifest within one year thereafter; and hypertension is not related to service. 2. Hypertension was not caused or aggravated by the service-connected PTSD. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, was not caused or aggravated by the service-connected PTSD and hypertension may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112. 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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. 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). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In the present case, letters sent to the Veteran in August 2003 and March 2006 fully addressed all notice elements. In fact, in September 2003, the Veteran indicated that he had been advised of the evidence needed to substantiate his claim, including the evidence VA would attempt to obtain and the evidence he should seek to obtain. The claim was subsequently readjudicated in a July 2012 supplemental statement of the case. VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the record includes the Veteran's service treatment records, VA outpatient treatment records, private medical records, lay statements and the report of VA examinations. The Board previously remanded the claim in September 2010 as the October 2003 VA examination was not adequate. The Board specifically indicated another VA examination should be provided and should include an opinion as to the relationship, if any, between hypertension and service and hypertension and PTSD. The examiner was further directed to provide a complete rationale for any conclusions reached. On remand, the Veteran was afforded a VA examination in June 2012 and an addendum opinion was provided in July 2012. The examiner considered the Veteran's subjective history and complaints and performed a thorough physical examination, responded to all of the questions posed by the Board and providing all necessary findings and explanations needed to evaluate the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Accordingly, the June 2012 VA examination and July 2012 addendum opinion that were provided are adequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran seeks service connection for hypertension and argues that his current disability is related to his service-connected PTSD. Having carefully considered the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal will be denied. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as hypertension. Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a)."). If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. In the present case, the June 2012 VA examination concluded with a diagnosis of hypertension. As noted above, this is an enumerated chronic disease within the meaning of 38 U.S.C.A. § 1101. As such, the Veteran has a current disability. Because hypertension is a chronic disease, it must be determined if hypertension was "noted" during service or if there were characteristic manifestations sufficient to identify the disease process. However, if the condition noted during service is not shown to be chronic, then there must be a showing of continuity after discharge is required to support the claim. Service treatment records reflect no complaints, treatment or diagnoses related to hypertension. In fact, on a January 1967 report of medical history the Veteran denied a history of high or low blood pressure. The January 1967 examination noted blood pressure of 120/80 and the May 1972 examination conducted in connection with the Veteran's discharge from service noted blood pressure of 110/68. Thus, hypertension was not noted during service and there were no characteristic manifestations of the disease process noted, identified, diagnosed or manifest during service within the meaning of 38 C.F.R. § 3.303(b) as interpreted by the Federal Circuit. More significantly, the evidence fails to reflect a nexus between the currently diagnosed hypertension and service. In this regard, the Veteran was afforded a VA examination in October 2003 to assess the nature and etiology of any current disability. The examiner noted the Veteran had essential hypertension which began about 10 years prior to the examination. The examiner explained that the Veteran went to the doctor when he had the flu and had soaring high blood pressure. He has been taking medication ever since. The impression was essential hypertension. Similarly, during a June 2012 VA examination, the Veteran reported that the onset of hypertension was about 10 years ago. The examiner also noted the service treatment records did not record a diagnosis of hypertension during service. The Veteran took medication for his hypertension. After reviewing the record, the examiner indicated that the hypertension was less likely than not incurred in or caused by an inservice injury event or illness. The examiner explained that the service treatment records did not record a diagnosis of hypertension. The diagnosis was not established until 25-30 years after service and therefore the hypertension was unlikely related to military service. In sum, none of the evidence links the hypertension to an event or incident during service. As the Veteran has a diagnosis of hypertension, which is one of the listed chronic diseases, the Board carefully considered whether service connection was warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. As explained by the Court in Walker, there are two ways to establish service connection for a chronic disease. In this case, the Veteran was not diagnosed with hypertension during service and it was not identified. Furthermore, he did not have characteristic manifestations of the disease process (high blood pressure) during service and hypertension was not noted during service. As such, the chronic disease of hypertension was not established. Furthermore, there is no evidence reflecting hypertension to a compensable degree within one year of the Veteran's separation from service. The Veteran reported in his March 2004 notice of disagreement that he first was aware of having hypertension during a flight physical in 1971. He indicated that although his blood pressure was low enough to pass, the medic made him lie down and go to sleep and took his blood pressure while sleeping so he could pass. While the Veteran is competent to report this history, the Board does not find this history to be credible. 38 C.F.R. § 3.159(a)(2)(defining competent lay evidence). Specifically, the Veteran's story concerning the onset of the condition has changed over time. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)(credibility can be impeached generally by showing, e.g., inconsistent statements). In his June 2003 claim for benefits, the Veteran never alleged that his hypertension had its onset during service. Rather, he indicated that he felt his service-connected PTSD aggravated the condition. During the October 2003 VA examination he similarly provided a history of hypertension for 10 years and never suggested the condition had its onset during service. It was not until the claim was underway that the Veteran provided the story of high blood pressure being noted during a flight examination. Furthermore, the service treatment records showed blood pressures within a normal range. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (defining hypertension as diastolic blood pressure predominantly 90mm. or greater and isolated systolic hypertension as systolic blood pressure of 160mm. or greater with a diastolic blood pressure of less than 90mm. and further indicating that hypertension should be confirmed by readings taken two or more times on at least three different days). Given these inconsistencies, the Board does not find the Veteran's report of high blood pressure during service to be credible. His report is inconsistent with the actual blood pressure readings during service, inconsistent with his denial of pertinent pathology at separation and inconsistent with his prior reports to medical examiners. The first indication of hypertension in the claims file is a September 2003 VA outpatient treatment record (nearly 31 years after separation from service). The Board notes, however that the October 2003 VA examination noted a history of hypertension for 10 years, reflecting an onset around 1993, nearly 21 years after separation from service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). More significantly, there is not silence alone in the present case. As noted above, at separation in May 1972, the Veteran's blood pressure was 110/68 and he denied a pertinent history. In sum, continuity of symptomatology is not established. Here, hypertension was not noted during service or within one year of separation. He did not have characteristic manifestation of the disease process during service. Section 3.303(b) is not applicable. In addition, we find that 38 C.F.R. § 3.303(a) is not applicable since any assertion of in-service onset and on-going manifestations not credible. The Veteran, however, contends his hypertension was caused by his service-connected PTSD. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis 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). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002). The Board notes that VA amended its regulation pertaining to secondary service connection, effective from October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310 ). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the Veteran's appeal was already pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). In this regard, the Veteran has a current disability of hypertension and service-connected disabilities PTSD. The question is whether the service-connected PTSD caused or aggravated the hypertension. In this regard, the Veteran was afforded a VA examination in October 2003 to assess the nature and etiology of any current disability. The examiner discussed the history and onset of the condition and noted the Veteran treated at VA. The examiner noted that the Veteran felt that his PTSD made his blood pressure go up. The examiner indicated that several flight physicals were normal and electrocardiogram (EKG) was always normal. He had no cardiovascular symptoms. The impression was essential hypertension and the examiner indicated he did not believe the blood pressure was caused by the service-connected PTSD. The Veteran was afforded a VA examination in June 2012. At that time, the Veteran reported that the onset of hypertension was about 10 years ago. As noted above, the examiner concluded that the hypertension was less likely than not incurred in or caused by an inservice injury event or illness based upon the negative service treatment records and gap between service and the diagnosis. In a July 2012 addendum, the examiner concluded it was unlikely the Veteran's PTSD caused or aggravated hypertension and was most likely that the Veteran has essential or primary hypertension. The examiner explained that Cecil's Essentials of Medicine, 6th Edition indicated that 95% of cases of hypertension were primary in nature with secondary causes of hypertension being uncommon. To date there were not large scale studies that showed an increase in hypertension due to PTSD. The examiner further cited to VA's Normative Aging study which did not show any increase in blood pressure in patients with the highest score for PTSD in their sample population. The Board finds the June 2012 examination and July 2012 addendum opinion to be especially probative. The examiner reviewed the record, examined the Veteran, considered medical treatises and provided a thorough explanation for the conclusion that the hypertension was not related to the service-connected PTSD. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The only evidence in support of the claim is the Veteran's own assertion that he suspects his PTSD aggravates his hypertension. To the extent to which the Veteran attempted to provide an etiological opinion between his hypertension and PTSD, he is not competent to do so in this particular case. Determining the etiology of hypertension is a complicated medical question which may be multi-factorial and involves interpretation of clinical tests to determine cause, assess damage and identify risk factors. See, The Merck Manual, §7, Chapter 71, 604-606 (18th ed. 2006)(explaining primary versus secondary hypertension, noting different risk factors, and discussing types of tests that can be performed in the work-up of a patient with hypertension). The Veteran has not demonstrated he has the knowledge, education or training to provide an opinion in such a complicated matter and therefore his opinion as to the etiology of his hypertension is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. The Board has also considered the benefit of the doubt rule in this case, but as there is no reliable evidence of a nexus or evidence of continuous symptoms as to hypertension and no evidence of a nexus linking hypertension to the service-connected PTSD, the preponderance of the evidence is against the claim. As the evidence is not in equipoise, there is no basis to apply the benefit of the doubt rule. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for hypertension is denied. ORDER Service connection for hypertension is denied. REMAND A review of the record reflects that the issue of entitlement to an increased evaluation for urethral stricture with urinary tract infections and prostatitis, currently evaluated as 10 percent disabling, was unintentionally dropped. After the April 2005 rating decision that granted service connection for urethral stricture with urinary tract infections and prostatitis, the Veteran files a notice of disagreement in May 2005 concerning only the effective date of the grant of service connection. The RO issued an August 2006 rating decision that was mailed to the Veteran in September 2006 that denied both an earlier effective date and an evaluation in excess of 10 percent. The Veteran submitted a notice of disagreement in October 2006 in which he disagreed with the September 2006 rating decision on the "earlier effective date for service connection of urethral stricture with urinary tract infections and prostatitis and evaluation of 10%." (Emphasis added). In May 2007, a statement of the case was issued on both the effective date for urethral stricture with urinary tract infections and prostatitis and the 10 percent evaluation for the urethral stricture with urinary tract infections and prostatitis. The Veteran perfected his appeal by way of a July 2007 substantive appeal on which he checked the box indicating he wanted to "appeal all of the issues." The subsequent November 2007 supplemental statement of the case addressed 13 issues, including the effective date for the urethral stricture with urinary tract infections and prostatitis; however, this SSOC did not address the claim for an increased evaluation for the urethral stricture with urinary tract infections and prostatitis. While the claim for an earlier effective date for the urethral stricture with urinary tract infections and prostatitis was ultimately decided in an August 2011 Board decision, there is no indication in the claims folder that the Veteran has withdrawn this issue of an increased evaluation for the urethral stricture with urinary tract infections and prostatitis and this claim for an increased evaluation remains pending. A review of the record reflects that the last VA examination of the urethral stricture with urinary tract infections and prostatitis was in March 2007. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). As it has been over 6 years since the last VA examination, the Board is of the opinion an updated VA examination should be obtained. Finally, the record reflects that the Veteran has been treated at VA and private facilities. The most recent VA treatment records associated with the claims file are dated in 2005. A VA "service-connected admission report" print out suggests the Veteran had surgery for status post urethral stricture in February 2008. Those records are not associated with the claims file. On remand, updated VA and private treatment records should be obtained and associated with the record. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159 (2012); see Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the Veteran to identify all sources of treatment that he has received for his claimed urethral stricture with urinary tract infection and prostatitis and to provide any releases necessary for VA to secure records of such treatment or evaluation. The RO/AMC should obtain copies of the complete records of all such treatment and evaluation from all identified sources. Updated treatment records from the VA Health Care System dated from 2005 to the present, including surgical records from February 2008, should be requested and associated with the claims file. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. After the foregoing development has been completed, the Veteran shall be afforded a VA examination to ascertain the current extent and severity of the urethral stricture with urinary tract infections and prostatitis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. 3. Following the completion of the above, and any other development deemed necessary, the RO/AMC should readjudicate the claim. If the claim is denied, the Veteran and his representative should be provided a Supplemental Statement of the Case and an opportunity to respond before the record is 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). ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs