Citation Nr: 1331056 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 05-27 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from October 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. This matter was previously before the Board in March 2008, February 2010, and February 2012. At the time of the February 2012 decision, the Board also remanded the issue of service connection for a bilateral lower extremity disorder manifested by pain and numbness for further development. In a December 2012 rating determination, the Appeals Management Center (AMC), acting on behalf of the RO, granted service connection for right and left lower leg neuropathy and assigned 10 percent disability evaluations. As this constitutes the full benefit sought on appeal as it relates to these issues and as the Veteran has not disagreed with the assigned disability evaluations, these issues are no longer before the Board and will not be addressed. As it relates to the requested development, to include that requested in the previous remands, the Board finds that the required development has been accomplished, to include obtaining an opinion as to the etiology of the Veteran's hypertension and its relationship, if any, to his period of service and/or service-connected PTSD, the reason for the most recent Board remand. Therefore, the Board finds that the RO complied with the Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). FINDING OF FACT Any current hypertension is not of service origin nor is it etiologically related to the service-connected PTSD, to include by way of aggravation. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013); 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Board notes that the Veteran's status has been substantiated. The Board observes that in April 2004 and June 2008 letters, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letters also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letters further told him to submit relevant evidence in his possession. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). March 2006 and June 2008 letters also provided the Veteran with notice as to the disability rating and effective date elements of the claim. Although some of the notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and been given ample time to respond, the RO has also readjudicated the case by way of a supplemental statement of the case issued after the notice was provided, most recently in December 2012. See 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 a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Furthermore, the Veteran and his representative have presented detailed argument which shows they are aware of what is needed to substantiate the claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal because any error in the notice did not affect the essential fairness of the adjudication. See generally Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining application of the rule of prejudicial error in the context of claims for VA benefits). VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, and private, have been obtained and associated with the claims folder insofar as possible. No other relevant records have been identified. The Board notes that this matter was remanded on several occasions to attempt to obtain opinions with regard to the etiology of any current hypertension and its relationship, if any, to his period of service and/or service-connected PTSD. In conjunction with the most recent Board remand, the Veteran was afforded a VA examination in March 2012 with the examiner providing the requested opinion along with rationale to support the opinion. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and the opportunity to appear at a hearing if so desired. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection for Hypertension Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has claimed service connection for hypertension, which is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that there was an amendment to 38 C.F.R. § 3.310, effective October 10, 2006. 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the ruling of the Court of Appeals for Veterans Claims (Court) in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the change amounted to a substantive change. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the more favorable version of 38 C.F.R. § 3.310 in effect before the amendment. The Veteran contends that his current hypertension is secondary to his service-connected PTSD. A review of the Veteran's service treatment records reveal no complaints or findings of hypertension in service. At the time of the Veteran's service separation examination, he was noted to have a blood pressure reading of 124/72. There were no complaints, findings or diagnosis of high blood pressure or hypertension at the time of separation. There were also no findings of hypertension in the years immediately following service. The Veteran was noted to have high blood pressure in April 2003 and was diagnosed as having hypertension, newly diagnosed, in December 2003. In conjunction with his claim, the Veteran was afforded a VA examination in June 2006. The examiner indicated that the Veteran was first diagnosed with hypertension in 2003. Following examination, a diagnosis of essential hypertension was rendered. The examiner indicated that there was no scientific basis to say that essential hypertension was related to PTSD. As a result of the February 2012 Board remand, the Veteran was afforded an additional VA examination in March 2012. The examiner rendered a diagnosis of hypertension. The examiner indicated that it was less likely as not that the Veteran's hypertension was caused or aggravated by his service-connected PTSD. The examiner noted that the Veteran's hypertension began in 2003, approximately 33 years after his military service was completed. He stated that there was no connection here. He indicated that medical literature contained no study demonstrating definitive causal connection between PTSD and hypertension. Thus, secondary service connection had not been substantiated. The Board finds that the weight of the competent, probative and credible evidence does not demonstrate that that the Veteran's hypertension was chronic in service or continuous since service. The Veteran's service treatment records do not reveal any complaints or findings of high blood pressure or hypertension during his period of service . At the time of the Veteran's service separation examination, his blood pressure was reported as 124/72. There was no indication that the Veteran had hypertension at that time. Furthermore, as noted above, the Veteran has indicated and treatment records reveal that the Veteran was not diagnosed as having hypertension until 2003, more than 32 years after his separation from service, with the December 2003 treatment record containing a diagnosis of hypertension, newly diagnosed. There were no findings of diagnosed hypertension, until many years following service. Therefore, the clinical evidence does not reflect either an in-service hypertension or continuity of symptomatology, for reasons clearly noted above, with significant evidence against such a finding. Additionally, hypertension did not manifest within a year of service separation. The Board has considered the lay evidence of record in determining whether there is continuity of symptoms. In the current case, the Veteran has not reported having hypertension in service or for many years following service. He has also not reported having a continuity of symptoms since service. Moreover, treatment records which have been associated with the claims folder make no reference to any findings of hypertension until years following service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). For the above reasons, continuity has not here been established, either through the clinical record or through the Veteran's own statements. As to the Veteran's belief that his current hypertension is related to his service-connected PTSD, the Board acknowledges the holding of the U.S. Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The Veteran has not been shown to have the requisite training or expertise to diagnose the onset of his hypertension and/or the cause of his current hypertension, to include any relationship to his service-connected PTSD. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was afforded the opportunity to provide medical evidence and/or an opinion relating his current hypertension to his period of service or the one year following service. He has not provided either medical evidence or an opinion to support this proposition. As noted above, the March 2012 VA examiner indicated that the Veteran's hypertension started 33 years after his separation from service and stated that there was no relation to his period of service. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board is giving this opinion the most probative weight. The Veteran's entire claims file, which at the time included his service treatment records, private and VA treatment records, and the statements from the Veteran, was reviewed. Based on all of the evidence, the examiner rendered an opinion that was supported by rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds this opinion to be the more probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that any current hypertension developed in service or in the one year following service, or is otherwise related to his period of service. As to the question of secondary service connection, as noted above, the Veteran is not competent to render an opinion as to whether his current hypertension is proximately due to or aggravated by his service-connected PTSD. The Veteran was afforded the opportunity to submit medical evidence and/or an opinion demonstrating a relationship between his current hypertension and his service-connected PTSD and has not done so. In contrast, the June 2006 VA examiner indicated that there was no scientific basis to say that essential hypertension was related to PTSD. The March 2012 VA examiner stated that it was less likely as not that the Veteran's hypertension was caused or aggravated by his service-connected PTSD. He indicated that the medical literature contained no study demonstrating definitive causal connection between PTSD and hypertension, thus, secondary service connection was not substantiated. The examiner provided rationale to support the opinion. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds this opinion to be the more probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that any current hypertension was caused or aggravated by the Veteran's service-connected PTSD. (CONTINUED ON NEXT PAGE) ORDER Service connection for hypertension is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs