Citation Nr: 1330696 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-02 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and major depressive disorder. 3. Entitlement to service connection for a sickle cell trait, to include a superimposed disorder. REPRESENTATION Appellant represented by: South Carolina Division of Veteran Affairs ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1984. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a July 2009 rating decision of the VA Regional Office in Columbia, South Caroling denied service connection for hypertension, depression and a sickle cell disorder. FINDINGS OF FACT 1. Hypertension was first clinically manifested many years after discharge from active duty and is unrelated to service. 2. An acquired psychiatric disorder, to include depression, was first clinically manifested many years after discharge from active duty and is unrelated to service. 3. The Veteran clearly and unmistakably had the sickle cell trait prior to service because a sickle cell trait is a congenital defect. 4. The Veteran does not have a current disability that was superimposed on his congenital sickle cell trait during his active duty service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2013). 2. An acquired psychiatric disorder, to include depression, was not incurred in or aggravated by service, nor may a psychosis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2013) 3. A disease or disability manifested by a sickle cell trait was not incurred or aggravated by active service. 38 U.S.C.A. §§ 1111, 1153, 5103, 5103A, 5107(b) (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in March 2009 and thereafter of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when one is necessary to make a decision on a claim. See McLendon v. Nicholson, 20 Vet.App. 79 (2006). This development is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran had an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) The Veteran has not been afforded VA examinations with respect to the claimed hypertension, sickle cell disease or acquired psychiatric disorder. As to these matters, the Board observes that the requirements for an examination are not met because active service clinical records do not reflect that he had complaints or diagnoses referable to such. The Board therefore finds that the evidence on file is adequate to render a decision on the claims, and that a VA examination is unnecessary. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims. The Board also finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claims are ready to be considered on the merits. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2013). Certain chronic diseases, to include hypertension and/or a psychosis, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving the shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013). Factual Background and Legal Analysis 1. Service connection for hypertension. The Veteran's service entrance examination report is not of record. The available service treatment records do not at any time reflect any elevated blood pressure readings. The appellant's service discharge examination report is not available, however, in a March 1984 Report of Medical History for separation from service, he denied high blood pressure. The examining official did not record any complaint or finding related to hypertension or high blood pressure on that occasion. The service treatment record contains a Dental Health Questionnaire dated in June 1984 on which the appellant did not indicate that he had high blood pressure. Post service physical examinations for National Guard purposes to include studies conducted in July 1985 and October 1991, do not reflect elevated blood pressure readings. Indeed, physical examinations in July 1985, October 1991, and September 2001 revealed a blood pressure that was within normal limits, and the appellant in July 1985, April 1989, October 1991, and September 2001 specifically denied a history of high blood pressure. Voluminous VA outpatient records dating from December 1984 reflect that the Veteran's blood pressure was consistently within normal limits. A diagnosis of hypertension is not shown in the post service record until January 2008 (in Virtual VA) for which he was placed on medication. A claim of service connection for hypertension was received in March 2009. Thus, the record reflects no evidence of high blood pressure during service, nor was hypertension manifested until 2008, more than two decades after the Veteran's discharge from active duty. In view of such, hypertension is not shown to be of service onset, and as hypertension was not compensably disabling within a year of separation from active duty, the presumption of service connection for such does not attach. There is no competent evidence in the record to show that hypertension developed until many years after discharge from active duty. In view of such, service connection for the hypertension is not warranted on a direct or presumptive basis. See 38 U.S.C.A. §§ 1101, 1112, 1113 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran asserts that hypertension is of service onset. Lay evidence must be considered when a Veteran seeks disability benefits. A layman is competent to report what he experiences through the senses. See Layno v. Brown, 6 Vet.App. 465, 470 (1994). A review of the extensive post service record, however, reflects no credible, competent or probative evidence in the record that relates chronic high blood pressure to service except for the Veteran's statements to this effect. The question when the Veteran developed hypertension is not substantially capable of lay observation. The onset and development of this disease is confirmed by a clinical finding that is substantially beyond a layman's competence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). Thus, any statement by the Veteran as to the onset of hypertension prior to a diagnostic finding or a medical designation of such is not competent evidence. Therefore, while the Veteran may attribute the onset of hypertension to service, he does not have the requisite medical training to provide a competent or probative opinion as to the onset of this claimed disability, id., especially in view of all clinical findings to the contrary. The Board thus finds that the Veteran's account of hypertension deriving from service is not credible. No physician of record has provided a nexus between this disease and service. Given the foregoing, the Board finds that the Veteran has not been a reliable historian and that his contentions that hypertension is of service onset are self-serving and are not credible. The benefit sought on appeal is denied. 2. Service connection for an acquired psychiatric, disorder, including major depressive disorder. As indicated previously, the Veteran's service entrance examination report is not available. The available service treatment records do not refer to any psychiatric complaints, treatment or findings. Similarly, the appellant's service discharge examination report is not or record. On a March 1984 Report of Medical History for service discharge, the appellant denied depression and nervous trouble of any sort. The examining official did not record any complaint or finding related to psychiatric symptomatology on that occasion. The Veteran's extensive VA outpatient records dating from December 1984 contain no evidence of or treatment for any psychiatric symptoms until January 2003. At that time, he sought clinical attention for symptoms that included depressed mood, isolative behaviors, anger, an inability to sleep, poor appetite, and difficulty concentrating, etc. Depression was diagnosed for which he was prescribed medication. In July 2003, the Veteran was seen for depression with threats to harm others. Following an extended interview, the assessment was depression versus adjustment disorder. Thereafter, his problem list included a diagnosis of major depressive disorder, single episode. The Veteran has continued in treatment for continuing psychiatric symptomatology. A claim of service connection for a psychiatric disorder was received in March 2009. In this regard, the Veteran's active service treatment records are not indicative of any complaints or references to depression or any other acquired psychiatric disorder. The appellant specifically denied depression as well as nervous trouble of any sort at separation. Post service, there is no reference or notation of depression until VA outpatient clinical records in 2003, almost two decades after discharge from active duty. There is no competent evidence relating the onset of any acquired psychiatric disorder, including depression or a major depressive disorder, to active service. As such, service connection for psychiatric disability is not warranted on a direct or presumptive basis. See 38 U.S.C.A. §§ 1101, 1112, 1113 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. There is nothing in the record during active service or in clinical evidence dating from 1984 that suggests depression deriving from service. Therefore, the Board finds that the silent service treatment records, the appellant's specific denial of nervous trouble, including depression, at service discharge and thereafter, as well as the long lapse of time between service and evidence of treatment for an acquired psychiatric disorder compel a finding that an acquired psychiatric disorder is not of service onset. The Board has carefully considered the appellant's lay account attributing depression to service. Lay assertions may serve to establish a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.309(a); Jandreau. Competence and credibility are not, however, synonymous. Here, the available evidence first indicates treatment for depression in 2003, almost 20 years after discharge from active duty. There is no evidence in the record indicating that the Veteran has an acquired psychiatric disorder of service onset except for his lay assertions. With respect to his lay assertions the Board concludes that the Veteran has not been a reliable historian, and that his later statement to this effect is self-serving and inconsistent with the clinical evidence in the record. The Board is stuck by the patent inconsistency of the appellant's current report of depression since service, with his multiple denials of psychiatric symptoms, to include depression, for many years prior to 2003. This inconsistency raises considerable doubt as to the appellant's credibility. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may be found to affect the credibility of testimony.) For the forgoing reasons, the Board concludes that the preponderance of the evidence is against the claim and service connection for an acquired psychiatric disorder, including depression and major depressive disorder, must be denied. 38 U.S.C.A. §§ 1131, 5107(b). 3. Service connection for a sickle cell trait. The Veteran's service entrance examination report is not available. Service treatment records do not reveal any reference to or treatment for symptoms referable to either a sickle cell trait or to a superimposed disease or disability secondary to a sickle cell train during active duty. The appellant's service discharge examination report is not record, however, his March 1984 Report of Medical History is available. Therein, the appellant referred to a number of symptoms he had had which were tooth or gum trouble, head injury, shortness of breath, and recurrent back pain. The examining office did not, however, record any complaint or finding related to a sickle cell trait. The service treatment record contains a Dental Health Questionnaire dated in June 1984 on which the appellant denied a bleeding problem. Post service, a VA clinical record dated in November 1985 noted that two weeks before, the appellant had developed dull right flank pain that continued. It was reported that there were two episodes of gross hematuria. Following examination and diagnostic testing, a positive sickle cell index was found. The impression was hematuria, probably secondary to sickle trait. The Veteran subsequently underwent cystoscopy that same month where it was noted that hematuria had spontaneously cleared. The diagnoses following the procedure were sickle cell trait and hematuria. The Veteran wrote on an Army National Guard enlistment examination dated in October 1991 that he had "sick cell" at age 14 for which he had been hospitalized at Charleston Memorial Hospital. The examining official noted that the appellant's sickle cell trait was asymptomatic. A VA outpatient clinic note dated in February 2009 indicated that the Veteran presented to the emergency department and stated that he was hurting all over after hernia surgery several days before. The examiner noted that the appellant had a history of sickle cell disease and presented with a vaso-occlusive crisis. Another entry related that he had a history of sickle cell trait that was severe and often manifested in crises. Following examination, the diagnoses included sickle cell crisis. A claim of service connection for sickle cell disease was received in March 2009. Sickle cell anemia is a hereditary determined hemolytic anemia, one of the hemoglobinopathies...characterized by arthralgias, acute attacks of abdominal pain, ulcerations of the lower extremities, sickle-shaped erythrocytes in the blood... See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 74 (28th ed. 1994). The sickle cell trait is the condition, usually asymptomatic, caused by heterozygosity for hemoglobin S. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 1934 (30th ed. 2003). As such, it is a congenital defect and the presumption of soundness at service entrance is automatically rebutted. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. A defect considered by medical authorities to be of congenital origin must by its very nature have pre-existed a claimant's military service). See VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. VA's General Counsel has held, however, that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. Id. The General Counsel indicated that support for this position could be found in VA's regulations, themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities. See 38 C.F.R. § 4.118. Diagnostic Code 7714 (2013). Therefore, a disease superimposed on a congenital defect may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. VAOPGCPREC 82-90. The Veteran contends that he has a sickle cell condition that was first manifested during service. The evidence, however, shows no complaints, findings or diagnosis referable to sickle cell disease, trait, or a crisis thereof was recorded during his term of active duty. As such, there is no basis to conclude that a superimposed disease, such as sickle cell anemia, was incurred or aggravated during active duty service. The first clinical evidence of any symptomatic process related to a sickle cell disorder was clinically indicated in November 1985, more than a year after discharge from active service. The Board thus concludes that the sickle cell trait clearly and unmistakably preexisted the Veteran's entrance onto active duty, and that a superimposed disease due to that trait was not incurred or aggravated during active duty service. Although the appellant currently has a history of sickle cell crises, the evidence shows that the preexisting sickle cell trait was not manifested by any disease or disability during active duty service. Therefore, the preponderance of the evidence is against the claim of service connection for sickle cell disease and it must be denied. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for an acquired psychiatric disorder, including depression and major depressive disorder, is denied. Entitlement to service connection for a sickle cell trait, to include a superimposed disease, is denied. ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs