Citation Nr: 1329964 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 04-09 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for scoliosis. 2. Entitlement to service connection for degenerative disc disease of the back (back disability), to include as secondary to scoliosis. 3. Entitlement to service connection for a right leg condition, to include as secondary to scoliosis. 4. Entitlement to service connection for a left thigh disability, to include as secondary to scoliosis. 5. Entitlement to service connection for a bilateral knee disability, to include as secondary to scoliosis. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for heart disease, to include as secondary to hypertension. 8. Entitlement to service connection for sleep apnea, to include as secondary to hypertension. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran had active military service from February 1971 to May 1974. The appellant is the Veteran's widow. This is a certified substitution case. This appeal initially came to the Board of Veterans' Appeals (Board) from a March 2003 rating decision. In February 2007, the Board denied a number of issues and remanded two. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In a January 2008 memorandum decision, the Court vacated the Board decision with respect to eight issues, and remanded the issues to the Board for additional development, consistent with the memorandum decision. In April 2009, the Board issued a second decision which denied the two issues that had been previously remanded (entitlement to service connection for asbestosis and for a left thigh disability). However, the Board was subsequently informed that the Veteran had unfortunately died earlier that month (April 2009), and, as a result, the April 2009 Board decision was vacated. Additionally, because of the Veteran's death, the Board dismissed his appeal in May 2011, without any prejudice to the substitution of an eligible person for the purpose of processing the claims to completion. In May 2012, the RO issued a letter indicating that the appellant had filed a claim in June 2009 requesting that she be substituted for the Veteran. VA General Counsel did not oppose the motion. The RO determined that the appellant was eligible, and granted her motion for substitution. In July 2012, the Board determined that the appellant had met the requirements for substitution in the case of death under 38 U.S.C. § 5121A, and remanded the issues on appeal here for additional development in accordance with the Court's January 2008 memorandum decision. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. No scoliosis, degenerative disc disease of the back, or leg or knee disability either began until many years after service or was related to the Veteran's service in any other way. 2. Hypertension, heart disease, and sleep apnea did not begin until many years after service and were not related to the Veteran's service in any way. CONCLUSIONS OF LAW 1. The criteria for service connection for scoliosis have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b), 3.306, 3.307, 3.309(a) (2012). 2. The criteria for service connection for degenerative disc disease of the back (back disability), to include as secondary to scoliosis, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310(a) (2012). 3. The criteria for service connection for a right leg condition, to include as secondary to scoliosis, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310(a) (2012). 4. The criteria for service connection for a left thigh disability, to include as secondary to scoliosis, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310(a) (2012). 5. The criteria for service connection for a bilateral knee disability, to include as secondary to scoliosis, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310(a) (2012). 6. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2012). 7. The criteria for service connection for heart disease, to include as secondary to hypertension, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310(a) (2012). 8. The criteria for service connection for sleep apnea, to include as secondary to hypertension, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, such as arthritis, hypertension, and other cardiovascular disease, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court has held that lay statements by a Veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). Service connection may also be established on a secondary basis for a disability that is shown to be 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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 the claimant. Scoliosis, degenerative disc disease of the back, a right leg condition, a left thigh disability, and a bilateral knee disability As reflected in his October 2003 notice of disagreement, the Veteran asserted that scoliosis was directly related to service, and that his left leg disability, right leg disability, and degenerative joint disease of both knees and the back were secondary to such scoliosis. He further asserted in a statement received in October 2004 that, from the very start of physical condition training in service, he was having pain in his lower body, went to sick call and was given muscle relaxers, and was not given proper medical attention, and that running, jumping, and pulling people up during fire drills gave him fits in his lower body. Service treatment records reflect that the Veteran presented for treatment on several occasions in service with complaints of pain in the left hip and groin between March 1971 and January 1974, and was given a diagnosis of sartorius strain. He also complained of muscle spasms in the upper thoracic spine in 1971, following some sports activity. The medical officer noted minimal spasms and diagnosed the Veteran with a muscle strain. At the time of both his January 1971 enlistment examination and May 1974 separation examination, the Veteran was noted to have had a normal clinical evaluation of the lower extremities, spine, and other musculoskeletal system, and no scoliosis or other back or lower extremity problems were noted. In January 1971, the Veteran reported having no history of bone, joint or other deformity, or back trouble of any kind, and in May 1974 he denied any history of recurrent back pain, or bone, joint or other deformity, and reported no other history of orthopedic problems, providing some evidence against this these claims, some of the evidence coming from the Veteran's own prior statements. The Veteran ended his active service in May 1974. Treatment records reflect a diagnosis of degenerative joint disease of the knees in June 1996. VA and private treatment records dated from that time to the April 2009 date of the Veteran's death reflect treatment for degenerative joint disease of the knees and lumbosacral spine problems including degenerative disc disease, spinal stenosis, and degenerative joint disease. A July 1999 private X-ray report indicates right convex scoliosis of the lumbar spine. A November 1999 letter from the Veteran's private chiropractor, J.R.B., reflects that Veteran presented in July 1999 for treatment of an injury that he sustained in June 1999 while lifting his mother's wheelchair. After such injury, the Veteran experienced acute pain and was subsequently diagnosed with degenerative disc disease at the L5-S1 disc segment with an extrusion and contact of the S1 nerve root at the left, causing neural foraminal stenosis, and disc protrusion at L3-L4 disc level. It was noted that the Veteran had been unable to work since June due to this condition, and that it was not appropriate for him to engage in any physical labor. An October 2003 letter from J.R.B. indicates that the Veteran was first seen by J.R.B. in July 1999, was given an X-ray examination, and had convex scoliosis of the lumbar spine at that time. J.R.B. further indicated that the Veteran was probably born with this condition, and that groin, hip, and knee pain the Veteran experienced during service "could very well be consistent with a curvature of the spine and its side effects." J.R.B. further stated that the Veteran now had a large herniated disc in his lower back and probably needed surgery. A December 2004 letter from Dr. I.M. reflects that Dr. I.M. was the local primary care physician for the Veteran and that the Veteran had had lumbar spine arthritis and scoliosis and symptoms in his lower extremities consistent with radiculopathy. A March 2006 letter from the Veteran's private physician, Dr. P.A., reflects that the Veteran was being treated for multiple musculoskeletal complaints and had scoliosis, and that during his service he had been on marching waivers due to his lumbar sacral disc disease. In August 2012, after reviewing the entire claims file, a VA physician opined that it was not at least as likely as not that the Veteran's scoliosis began during, was caused by, or was aggravated by his military service. The examiner explained that there was no diagnosis or documentation of the medical condition of scoliosis in the service treatment records, and that scoliosis was not documented as an abnormal finding at his entrance examination, but that, rather, the spine was noted to have been normal. The examiner pointed out that at the time of that enlistment examination, the Veteran was noted to have had some abnormal findings, including pes planus and genu varus. The examiner noted the Veteran's in-service treatment for muscle strain of the upper back/thoracic region, and noted that there was no mention of scoliosis at that time. The examiner also noted that there had been an orthopedic evaluation in January 1974 due to the Veteran's persistent left groin complaints, at which time it was documented that gait was normal, all labs and X-rays were within normal limits, and that there was no orthopedic requirement to limit activity. The examiner stated that based on the multiple specific service treatment examinations and the fact that there was nothing about scoliosis in the service treatment records, the examiner could clearly state that the Veteran's scoliosis did not begin during, was not caused by, and was not aggravated by his military service. The examiner noted that the opinion took into consideration the evidence supporting lumbar disc disease and scoliosis in the claims file, but that these findings were noted after or remotely from military service, providing highly probative evidence against this claim. The examiner also noted the medical literature regarding the nature and various etiologies of scoliosis. The examiner noted the November 1999 letter documenting a July 1999 back injury, that an October 2002 examination showed a leg length discrepancy, that the Veteran had acute and chronic disc disease noted many years after service, and that the Veteran's multiple myeloma, from which he died, likely caused lumbar vertebrae lesions. The examiner stated that all of the medical findings were remote from the Veteran's military service, and established that he had a reason to have scoliosis due to leg length discrepancy, acute disc pain, and chronic degenerative disc disease, but that "the onset of these findings clearly document separate conditions that are a result of scoliosis which appears to have developed remotely post military and is unrelated to his military service." The VA examiner also opined that it was not at least as likely as not that a lower extremity disability of the hips, thighs, knees, or legs either began during or was otherwise caused by the Veteran's military service. The examiner noted that the Veteran's entrance examination report noted that his spine was documented to be "normal" along with all other musculoskeletal joints. The examiner noted that the Veteran was evaluated during service for persistent, recurrent complaints of left groin pain, but that the orthopedic evaluation performed in January 1974 and separation physical examination found that physical examination was normal and that the Veteran "had 'no' checked for his review of these symptoms from the separation 'Report of the Medical History.'" The examiner stated that these findings in the military helped document that there were no lower extremity disabilities of the hips, thighs, knees, and/or legs that began during or were caused by the Veteran's military service. The examiner further stated that the medical evidence of record acknowledged that the Veteran was remotely and distantly found to have problems with the areas claimed, but that the medical evidence of record showed right knee pain, first found in 1996 due to degenerative joint disease, bone pain due to diffuse lytic lesions, probable myeloma infiltration, and light chain disease with probable myeloma, and gout in May 2006. The examiner stated that none of these disease processes involving the bones of the lower extremities was present or existed in the military. Considering the pertinent evidence in light of the governing legal authority, the Board finds that these service connection claims must be denied. Initially, none of the Veteran's claimed orthopedic disabilities were shown to have begun in service. While some abnormal findings such as pes planus and genu varus were noted at entry into service, the Veteran is presumed to have otherwise been in sound condition with respect to his back, legs, and knees. However, while the Veteran was treated for pain in the left hip and groin on several occasions in service, and on one occasion for back pain, no chronic disability such as arthritis was shown to have manifested in service or within a year of service. Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.307 and 3.309(a) are not applicable in this case. Furthermore, the weight of the competent and probative evidence of record demonstrates that no scoliosis, degenerative disc disease of the back, right leg condition, left thigh disability, or bilateral knee disability began until many years after service, or was related to the Veteran's service in any other way. The most probative competent medical opinions are that of the August 2012 VA examining physician, which were that it was not at least as likely as not that the Veteran's scoliosis or a lower extremity disability of the hips, thighs, knees, or legs began during, was caused by, or was aggravated by his military service. The Board finds these opinions to be persuasive, as they were given by a physician with appropriate expertise who thoroughly reviewed, quoted, and cited to the claims file, quoted and discussed the relevant medical literature, and provided thorough rationales. Furthermore, the VA examiner's opinions are consistent with the record as a whole. The Veteran's own statements at separation are consistent with this finding. The examiner explained that, despite numerous instances of treatment and orthopedic examinations in service, including some abnormal findings at entry, neither scoliosis nor any other chronic back or any claimed lower extremity condition was ever documented in service, by both objective medical examination and the Veteran's own reported history. The examiner also noted that medical evidence did not reveal that the Veteran's claimed disorders existed until many years after service, during the 1990s at the earliest. Rather, according to the examiner, they appeared to have developed as the result of disorders that came about many years post-service such as leg length discrepancy, acute disc injuries and problems, chronic degenerative disc disease, degenerative joint disease of the knees beginning in the 1990s, bone pain due to diffuse lytic lesions, probable myeloma infiltration, light chain disease with probable myeloma, and gout. Additionally, the examiner cited pertinent medical evidence and medical literature to support this proposition, providing more support for the medical opinon. While, as the VA examiner noted, the abnormal findings of pes planus and genu varus were noted on the Veteran's entrance examination, service treatment records do not reflect a worsening of these conditions, despite his repeated treatment for groin pain. Furthermore, there is no competent evidence relating any such preexisting conditions to any of the Veteran's claimed disabilities; rather, as noted above, the August 2012 VA examiner suggested that such claimed disabilities were not related to anything that occurred until many years after service. To the extent that there is other, competent evidence in favor of the Veteran's claims, the Board finds that it is heavily outweighed by the evidence against such claims, and specifically the report of the August 2012 VA examiner and some of the Veteran's prior statements. The Board notes the October 2003 letter in which J.R.B. indicated that the Veteran was probably born with scoliosis, and that groin, hip, and knee pain the Veteran experienced during service "could very well be consistent with a curvature of the spine and its side effects." However, the Board finds this opinion to be of diminished probative value in supporting the claims on appeal. The letter does not indicate that J.R.B. reviewed any pertinent service records, and the opinion is, at best, equivocal. In this regard, J.R.B. did not actually state that the Veteran's time in basic training may have aggravated his scoliosis, or that the side effects of scoliosis had been made worse by the Veteran's time in basic training, and, if so, that the effects had made the scoliosis permanently worse. Overall, in fact, this medical opinion appears to provide limited evidence against the claims, not in favor. In any event, the Board finds that such statement does not rise to the level of clear and unmistakable evidence to rebut the presumption of soundness with respect to the Veteran's scoliosis, and, moreover, for reasons discussed above, the Board finds that it is heavily outweighed by the opinion of the August 2012 VA physician that scoliosis was not present until many years after service. Also, regarding the March 2006 letter from Dr. P.A. indicating that during his service the Veteran had been on marching waivers due to his lumbar sacral disc disease, such statement appears to be nothing more than a restatement of the Veteran's own given history. A bare transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. See LaShore, 8 Vet. App. 406. As the record does not reveal that "lumbar sacral disc disease" or any other such chronic back disability actually existed during service, the Board finds this letter to be of no probative value on the question of nexus. The Board recognizes that the Veteran may have believed that his back or lower extremity problems were due to service. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372. However, as a lay person, the Veteran was not qualified to make the medical determination that his remote orthopedic disabilities were related to his period of service 15 or more years prior; moreover, to the extent that the Veteran could be considered at all qualified to make such determinations, they would be heavily outweighed by the probative medical opinions of the August 2012 VA examining physician. Also, the Veteran is competent to report matters within his own personal knowledge, such as any continuity of back or lower extremity symptomatology since service. See Layno, 6 Vet. App. at 469. However, in this regard, while the Veteran reported in-service problems and improper treatment for such problems, he never actually appears to assert (it appears) continuous symptomatology from the time of service until the time his claims were filed or the problems began. In this regard, in addition to the Veteran's denial of any such symptomatology at the time of his January 1974 separation examination, and the lack of any medical treatment for such problems since the time of his service until the 1990s, the record reflects that the Veteran filed a claim for service connection disability benefits in December 1978, but not for any of the claimed conditions on appeal; the earliest claim for any such disabilities is dated in August 1999, many years after service and many years after his first claim for VA benefits. This fact would weigh heavily against the credibility of any assertions of continuity of orthopedic symptomatology from the time of service (assuming such a claim is even being made in this case). Finally, to the extent that the Veteran asserted that his orthopedic disabilities were secondary to his claimed scoliosis, as the Board finds that service connection for scoliosis is not warranted, any claims for service connection as secondary to this disorder must also fail. Accordingly, the Board finds that the claims for service connection for scoliosis, degenerative disc disease of the back, right leg condition, a left thigh disability, and a bilateral knee disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Hypertension, heart disease, and sleep apnea As reflected in his October 2003 notice of disagreement, the Veteran asserted that his hypertension was directly related to service, and that heart disease and sleep apnea were secondary to such hypertension. Service treatment records reflect no treatment, diagnosis, or complaints regarding hypertension, heart disease, or sleep apnea. A May 1974 treatment record notes a high blood pressure reading of 135/90 upon a complaint of a headache and a swollen left eyelid. However, there was no diagnosis of hypertension during service, and a blood pressure reading was normal upon separation in May 1974. VA treatment records reflect a diagnosis of hypertension in June 1996, and subsequent VA and private treatment records, dated from that time to the April 2009 date of the Veteran's death, reflect treatment for hypertension, sleep apnea, and other cardiovascular disease including mild congestive heart failure and coronary artery disease. The report of a December 2002 VA examination contains a notation that the claims file revealed that "hypertension began while in the military with documented elevated blood pressures during clinical visits including May 1974, when it was 130/95 mmHg, although it does not appear that he was on treatment at that time." In a February 2003 addendum, the examiner stated that the medical evidence revealed "one mildly elevated blood pressure reading in the service at a time when the [Veteran] had a headache and eye problems since morning and there were no other elevated blood pressure readings in service and hypertension was not diagnosed until about 1992," and that, therefore, it was the examiner's opinion "that it is not at least as likely as not that [the Veteran's] present hypertension is due to military service." A December 2004 letter from the Veteran's local primary care physician Dr. I.M., notes the December 2002 VA examination report indicating that hypertension began during service, and stated that years of untreated hypertension had led to nephropathy, declining renal function, and multiple medications. In August 2012, a VA physician reviewed the claims file and opined that it was not at least as likely as not that the Veteran's hypertension either began during or was otherwise caused by his military service. The examiner explained that the January 1971 enlistment examination documented blood pressure of 110/72, and that none of the service treatment record entries except one in May 1974 documented an elevated blood pressure, which occurred when the Veteran was seen for headache and swollen left lower lid, was assessed with rule out high blood pressure and likely chalazion, and given a 24 hour duty excuse. (The Board notes that the VA examiner incorrectly documented the Veteran's blood pressure at this time as 130/65 rather than 130/90, but that this appears to have been a typographical error, and has no bearing on the overall opinion.) The examiner further noted that service treatment records did not document that any further evaluations were done of the blood pressure for trending, but that the May 1974 separation physical documented a discharge blood pressure of 100/80, and that, at the time of separation physical, the Veteran "checked 'No' to all review of system entries including 'high or low blood pressure' and all physical examination entries were found to be normal." The examiner noted that the Veteran "finally [did] end up with a diagnosis of hypertension (remotely from military service in 1992 or 1995 forward to his death) and had been seen by VA Nephrology for this condition." The examiner also noted a VA treatment record in July 2004 noting that the Veteran was diagnosed to have hypertension in 1974 but started taking medications in 1995. The examiner noted another September 2004 VA record stating that the Veteran had had hypertension for about 25 years, but that once again this was self-reported and based on one blood pressure determination. The examiner stated that a diagnosis of hypertension could not be made based upon one blood pressure determination, and that, according to the medical literature, blood pressure was based on the average of two or more properly measured readings at each of two or more visits after an initial blood pressure screen. The examiner noted that, by the Veteran's own self-reports in the medical record, he was not treated with any medications until 1995, which placed the recognition of, official diagnosis of, and treatment of his hypertension in 1995. The examining physician also noted that the previous VA examination had incorrectly made a diagnosis of hypertension based upon one determination, which was the wrong thing to do. Considering the pertinent evidence in light of the governing legal authority, the Board finds that these service connection claims must also be denied. The weight of the competent and probative evidence of record demonstrates that hypertension, heart disease, and sleep apnea did not begin until many years after service and are not related to the Veteran's service in any way. The most probative competent medical opinion is that of the August 2012 VA examining physician, which was that it was not at least as likely as not that the Veteran's hypertension either began during or was otherwise caused by his military service. The Board finds this opinion to be persuasive, as it is consistent with the record and was given by a physician with appropriate expertise who thoroughly reviewed and cited to the claims file, quoted and discussed the relevant medical literature, and provided a thorough rationale. The examiner noted the Veteran's single elevated blood pressure reading in service, but explained that a diagnosis of hypertension could not be made based upon one blood pressure determination, and that, according to the medical literature, blood pressure was based on the average of two or more properly measured readings at each of two or more visits after an initial blood pressure screen. The examiner further explained that subsequent service treatment records indicated that, in fact, the Veteran did not have hypertension, despite the May 1974 blood pressure reading, as there were no further blood pressure evaluations for trending, and the May 1974 separation physical documented a discharge blood pressure of 100/80, at which time the denied any history of high or low blood pressure. The examiner determined that the Veteran's hypertension likely had onset in the 1990s, at which time he began receiving treatment. In this regard, as the record reflects that hypertension or other heart disease did not manifest until many years after service, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable. The Board notes the December 2002 VA examiner's determination that "hypertension began while in the military with documented elevated blood pressures during clinical visits including May 1974." However, that the examiner revised that opinion in a February 2003 addendum, stating that the medical evidence revealed "one mildly elevated blood pressure reading in the service at a time when the [Veteran] had a headache and eye problems since morning and there were no other elevated blood pressure readings in service and hypertension was not diagnosed until about 1992," which is consistent with the August 2012 VA examiner's opinion and rationale. In this regard, the December 2002 examiner's initial suggestion that there had been more than one documented elevated blood pressure reading during clinical visits in service, which led to the December 2002 statement, is not consistent with the service treatment records. Thus, taken together, the December 2002 examination report and February 2003 addendum provide evidence against the Veteran's claims. The Board also notes the December 2004 letter from Dr. I.M. However, the letter merely quotes the findings contained in the December 2002 VA examination report (without addressing the fact that such findings were revoked and revised in the February 2003 addendum), and does not express any separate, independent medical opinion regarding etiology. Furthermore, there is no indication that Dr. I.M reviewed service treatment records or any other such pertinent documentation. Thus, the Board finds the letter to be of little probative value, and to be heavily outweighed by the August 2012 VA examiner's opinion. Finally, regarding the claims of heart disease and sleep apnea, the record does not reflect, and the Veteran had not asserted, that such disorders began during or until many years after service, or were directly related to service. Rather, as clarified in his October 2003 notice of disagreement, such disorders were being claimed as secondary to hypertension. However, as the Board finds that service connection for hypertension is not warranted in this case, such secondary service connection claims for heart disease and sleep apnea must also fail. Accordingly, the Board finds that the claims for service connection for hypertension, heart disease, and sleep apnea must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letters dated in November 2003, May 2005, and May 2008, which informed the Veteran of all the elements required by Pelegrini II; the May 2008 letter informed the Veteran of the elements required in Dingess/Hartman and, moreover, as the Board denies the service connection claims on appeal, any error in notice as to the criteria for establishing a disability rating and effective date of award is moot. While these notice letters were provided subsequent to the initial RO determination in March 2003, after issuance of the letters and opportunity for the Veteran to respond, a January 2013 supplemental statement of the case (SSOC) reflects the most recent readjudication of the claim. Hence, the appellant is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SSOC, is sufficient to cure a timing defect). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical treatment records, identified private treatment records, and letters from the Veteran's private medical providers have been obtained. Also, VA obtained medical reports in December 2003 and August 2012. These reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The August 2012 VA reports, in particular, were based on a thorough review of the claims file by a physician with appropriate expertise. 38 C.F.R. § 3.159(c)(4) (2012); Barr, 21 Vet. App. 303. Furthermore, in providing these adequate reports, which sufficiently answered the Board's questions, the RO has substantially complied with the Board's July 2012 remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Also, in obtaining adequate medical reports and opinions regarding the Veteran's claimed scoliosis and hypertension, the Board has substantially complied with the Court's January 2008 memorandum decision. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. ORDER Service connection for scoliosis is denied. Service connection for degenerative disc disease of the back (back disability), to include as secondary to scoliosis, is denied. Service connection for a right leg condition, to include as secondary to scoliosis, is denied. Service connection for a left thigh disability, to include as secondary to scoliosis, is denied. Service connection for a bilateral knee disability, to include as secondary to scoliosis, is denied. Service connection for hypertension is denied. Service connection for heart disease, to include as secondary to hypertension, is denied. Service connection for sleep apnea, to include as secondary to hypertension, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs