Citation Nr: 1330303 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 07-25 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hypertension as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial evaluation in excess of 10 percent for PTSD disability. REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1965 to November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2006 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). In the October 2006 rating decision, the RO denied the claim for service connection for PTSD and declined to reopen a previously denied claim for service connection for hypertension. The Veteran appealed the denial of his claims. By the way of the April 2009 rating decision, the RO awarded service connection for PTSD and assigned a 10 percent evaluation, effective from September 22, 2004. The Veteran appealed the initial assigned rating. In January 2010, the Veteran testified before the undersigned during a Board hearing held at the Central Office in Washington, District of Columbia. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A copy of the transcript has been associated with the claims folder In an April 2011 decision, the Board reopened the previously denied claim for service connection for hypertension based on new and material evidence and remanded the underlying claim to the RO (via the Appeals Management Center (AMC)) for additional development. The Board instructed that the RO/AMC to obtain outstanding records of identified private treatment and to provide the Veteran with a VA examination in order to obtain a medical opinion on the etiology of his claimed disorder. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board previously noted in April 2011 that the Veteran desired to initiate an appeal to the April 2009 rating decision, but it was unclear whether he had submitted a written notice of disagreement while the claims folder was at the Board. Since then, his January 2010 notice of disagreement has been associated with the claims folder. The issue of increased rating for PTSD 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. The Veteran's hypertension was not first manifested in service or for more than three decades after his separation from service. 2. There is no medical evidence linking hypertension directly to any aspect of the Veteran's period of service. 3. The preponderance of the medical evidence is against a finding that the Veteran's hypertension is proximately caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA sent a letter to the Veteran in May 2006 that addressed the notice elements concerning his claims for service connection. The letter informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has obtained the Veteran's service treatment records as well as obtained any available pertinent records adequately identified by the Veteran. VA also has provided the Veteran with a VA hypertension examination in December 2011. That examination report shows that the examiner reviewed the claims folder as well as recorded the Veteran's reported history and findings from clinical evaluation, and then provided medical opinion, supported by rational statement, on the nature and etiology of the Veteran's claimed disorder. The Board finds that the medical opinions are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection 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 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). 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, a disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. 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. A disability which is aggravated by a service-connected disorder may be service connected, but compensation is only available for the degree to which that condition was made worse by the service-connected condition - only to the degree that the aggravation is shown. 38 C.F.R. § 3.310. In such a situation, VA laws require that the medical evidence must show a baseline level of severity of the nonservice-connected disease or injury, which is established by medical evidence created before the onset of aggravation. Id. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks service connection for hypertension. In particular, he asserts that his hypertension is secondary to his service-connected PTSD. He feels that stress associated with his mental health symptomatology has aggravated his hypertension. Although the Veteran does not assert (nor does the evidence of record show) that his current diagnosed hypertension is directly related to service, the Board will first address the Veteran's claim for service connection on a direct basis prior to considering his claim on a secondary basis. Again, the Board notes that in order to support an award of service connection on direct basis there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and medical nexus between the claimed in-service disease or injury and the current disability. See Hickson, 12 Vet. App. at 253. Under VA rating criteria, the term, hypertension, means that diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Here, the evidence of record clearly establishes that the Veteran has hypertension. See private treatment records starting in 2003 as well as the report of a December 2011 VA examination. However, the Board observes that the evidence of record does not show that the Veteran had hypertension in service, at separation, or until four decades after his discharge from service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran's service treatment records do not show any treatment, complaints or diagnosis of hypertension during service. The November 1970 examination report prior to separation shows the Veteran's heart and vascular system were again evaluated as normal. At the time of the examination, the Veteran's BPR was 120/68. On the associated medical history report, the Veteran did not mark any symptomatology that would indicate hypertension. In addition, the clinical evidence does not reflect, nor has the Veteran's provided lay statements to the effect that he has experienced symptoms of hypertension since service. Significantly, it was not until 2004, more than three decades after the Veteran's discharge from service do his private treatment records show he was diagnosed with hypertension, after having three blood pressure readings with diastolic blood pressure is predominantly 90 mm. and he has since been treated for hypertension. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (to the effect that service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Essentially, there is no evidence of a disorder first manifesting in service, and the Veteran has not asserted (nor does the evidence of record show) that there is any continuity of symptomatology over the 30 year time span between his separation from service and the first evidence of hypertension. See 38 C.F.R. § 3.303. As such, service connection may not be established based on chronicity in service, or post- service continuity symptoms first seen in service. 38 C.F.R. §§ 3.303(b) and 3.306; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is also no favorable medical nexus opinion of record that supports a medical link between current diagnosis of hypertension and the Veteran's period of service. In the December 2011 VA examination report, the VA examiner opined that it was less likely than that the Veteran's hypertension is related to his period of service. The examiner stated that he had review the claims folder and he supported his medical conclusion by noting that there was no evidence of hypertension in the Veteran's service treatment records and his 1970 separation examination report showed his blood pressure reading was normal. The examiner further noted that there was no documentation of any treatment for his blood pressure until 2001, almost 30 years after his period of service. There is no medical opinion to the contrary. Turning back to the Veteran's primary assertion - entitlement to service connection on a secondary basis, the remaining question is whether the medical evidence supports, or is at least in equipoise as to, the Veteran's assertion that his hypertension is proximately caused or aggravated by his service-connected PTSD. See 38 C.F.R. § 3.310. While the Veteran may believe he has hypertension as secondary to his service-connected PTSD, he does not have training in the medical field and the weight of the more probative medical evidence is against such a finding. Medical professionals have commented on the likelihood that the Veteran has hypertension related to service-connected PTSD. In support of his claim, the record contains a March 2006 statement from T. R. Y., M.D., who rendered a diagnosis of "[h]ypertension aggravated by PTSD." The private statement contains no other statement regarding the Veteran's hypertension or PTSD. Weighing against the Veteran's claim is the medical opinion contained in the December 2011 VA examination report. The VA examiner opined that the Veteran's hypertension was not etiologically related to his PTSD. The examiner stated that his medical opinion was rendered after a review of the claims folder and was supported by a review of medical literature. The examiner noted that according to the medical literature the two conditions (hypertension and PTSD) are not medically related. It is well established that the Board is within its province to weigh conflicting medical evidence. In assessing medical evidence, whether a physician provides a basis for his medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Swann v. Brown, 5 Vet. App. 229, 232 (1993). 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Here, Dr. Y. provided no statement in support of his medical conclusion that the Veteran's hypertension was aggravated by his PTSD disability. While Dr. Y. appears to be the Veteran's treating physician, and he is presumably familiar with the Veteran's medical history, without any additional statement that demonstrates how or why the Veteran's PTSD aggravates his hypertension, the 2006 private medical opinion contains little, if any, probative value. In contrast, the Board finds that the VA examiner's negative medical nexus opinion is more probative in this matter, and it weighs heavily against the Veteran's claim. Although his statement may seem scant, the VA examiner did provide a rational statement in support of his medical conclusion by stating that a review of the medical literature did not support a relationship between hypertension and PTSD. The Board also gives significant probative value to the comments from the 2011 VA examiner, since the VA examiner had access to the entire claims file, to include the service treatment records, post-service treatment records, and previous medical statements. The Board has also considered the Veteran's own assertions regarding a possible connection between his hypertension and his service-connected PTSD. The Board is aware that lay statements may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007), the Court, in regard to varicose veins, indicated that lay evidence was to be considered competent with regard to a disease with "unique and readily identifiable features" that was "capable of lay observation." 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 v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In this case, the determinative issue involves a medical opinion, and there must be competent medical evidence to the effect that the claim is plausible. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Notably, the question of whether the Veteran's hypertension was caused or aggravated by his service-connected PTSD can only be answered based on diagnostic testing and medical expertise that cannot be identified by a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the Veteran's assertions are afforded little probative weight in the absence of evidence showing that the Veteran has medical training that can provide the expertise to render opinions about medical matters. In contrast, the December 2011 VA medical examiner has opined against a finding that the Veteran's hypertension is proximately caused or aggravated by his service-connected PTSD. In sum, the medical evidence does not show any complaints or medical findings indicative of hypertension during service or for three decades thereafter, and there is no competent medical evidence linking this finding directly to service. See 38 C.F.R. § 3.303. Furthermore, the weight of the medical evidence is against a finding that the Veteran's hypertension is proximately caused or aggravated by his service-connected disabilities. See 38 C.F.R. § 3.310. Service connection for hypertension is not warranted. See Hickson, 12 Vet. App. at 253. ORDER Entitlement to service connection for hypertension is denied. REMAND The Veteran filed a timely notice of disagreement to the April 2009 rating decision that assigned an initial 10 percent rating for his PTSD disability. The Veteran has not yet received a statement of the case for this issue. Thus, because the Veteran has filed a notice of disagreement, a remand to the RO is necessary in order for the RO to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO should provide the Veteran a Statement of the Case as to the issues of entitlement to an initial evaluation in excess of 10 percent for PTSD disability. The Statement of the Case should be sent to the latest address of record for the Veteran. The RO should inform the Veteran that he must file a timely and adequate substantive appeal in order to perfect an appeal of the issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b) (2012). 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). ______________________________________________ N. RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs