Citation Nr: 1331790 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 06-02 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1972 to August 1981 and from September 1985 to September 1995. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran was scheduled for a May 2006 Travel Board hearing but did not appear, and instead submitted an April 2006 sworn statement in lieu of a hearing. The Veteran's hearing request has accordingly been withdrawn. The Board remanded the case in February 2008 for further development that included a request to obtain outstanding medical records from the U.S. Naval Hospital at Yokosuka, Japan, and to obtain a VA examination and opinion. This was accomplished and the Board finds that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran did not experience chronic symptoms of hypertension during his initial period of service from June 1972 to August 1981, or continuous symptoms of hypertension after service separation in August 1981. 2. Hypertension not manifest to a compensable degree within one year of service separation in August 1981. 3. Hypertension was "noted" at service entrance in September 1985. 4. The Veteran was diagnosed with essential hypertension prior to service entrance in September 1985, and continued receive treatment for hypertension in service from September 1985 to September 1995. 5. The evidence shows that hypertension preexisted service, clearly and unmistakably was not aggravated by service, and any increase in symptoms was due to the natural progress of the disease. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. In a June 2008 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The June 2008 VCAA notice letter included provisions for disability ratings and for the effective date of the claim. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, post-service military treatment records from the U.S. Naval Hospital, a VA examination and medical opinion, a private medical opinion, and the Veteran's statements and other lay evidence. While service treatment records dated from September 1985 to September 1995 were not initially associated with the record, upon further development on remand, the service treatment records from the Veteran's second period of service were obtained and have been associated with the record. A December 2011 VA examination and January 2012 VA opinion addressed service connection for hypertension. 38 C.F.R. § 3.159(c)(4) (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and opinion in this case obtained are adequate because the examination was performed by a medical professional and included a thorough examination, and the opinion was based on a review of the record and history and symptomatology from the Veteran. Moreover, the January 2012 opinion answered the questions asked in the February 2008 remand order, used terminology which was responsive to the correct standard of review as requested by the Board, and the examiner provided supporting reasons for the medical opinion offered based on findings from the medical record See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). For these reasons, the Board finds that the VA opinion obtained complied with the directives of the February 2008 remand order. See Stegall, 11 Vet. App. at 271. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion has been met. 38 C.F.R. § 3.159(c)(4). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not identified outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations 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, 1131 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). Hypertension is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) applies. 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. With a chronic disease shown 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. 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. 38 C.F.R. § 3.303(b). 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, 1137; 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. A veteran is 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, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). If a disorder was not "noted" on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the "increase in disability [was] due to the natural progress of the preexisting condition." 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate. A December 2011 VA examination reflects a current diagnosis of hypertension. The Veteran contends that hypertension was initially diagnosed and treated during his second period of service from September 1985 to September 1995, and that he has continued to receive treatment since service. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence demonstrates that currently diagnosed hypertension was not incurred in service, preexisted the period of service from September 1985 to September 1995, clearly and unmistakably was not aggravated by service, and any increase in symptoms was due to the natural progress of the disease. The Veteran, in this case, served on two separate periods of active duty, from June 1972 to August 1981 and from September 1985 to September 1995. The Board will initially address whether hypertension was incurred in the Veteran's initial period of service from June 1972 to August 1981. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (VA must consider the possible theories of entitlement raised by the claimant or the evidence of record). After reviewing all the lay and medical evidence, the Board finds the Veteran did not experience symptoms of hypertension during service from June 1972 to August 1981, or continuous symptoms of hypertension after service separation in August 1981. Service treatment records do not reflect any complaints, treatment, or diagnosis for hypertension during the Veteran's initial period of service. An August 1981 discharge examination reflects a finding of borderline diastolic high blood pressure; however, a diagnosis of hypertension was not indicated at that time. Moreover, post-service Navy outpatient treatment records dated from 1981 to 1984 do not reflect any treatment or diagnoses of hypertension, or monitoring for high blood pressure. Instead, the record shows that essential hypertension was first diagnosed in August 1985, four years after the Veteran's August 1981 separation from service. Accordingly, the Board finds that the Veteran not experience chronic symptoms of hypertension in service for the period from June 1972 to August 1981, or continuous symptoms of hypertension after service separation in August 1981 to warrant a finding of service connection under the provisions of 38 C.F.R. §§ 3.307 and 3.309. Hypertension did not manifest, including to a compensable degree, within one year of service separation to warrant presumptive service connection under 38 C.F.R. § 3.303(b). The evidence of record does not otherwise indicate a nexus between currently diagnosed hypertension and the Veteran's initial period of service from June 1972 to August 1981. For these reasons, the Board finds that hypertension was not incurred during the Veteran's initial period of service from June 1972 to August 1981. The Veteran contends that hypertension was initially diagnosed and treated during his second period of service from September 1985 to September 1995. In a May 2003 claim, the Veteran identified the onset of "high blood pressure" in 1985. In a December 2011 VA examination, the Veteran reported that he rejoined the Navy, was sent to Great Lakes, and was found to have elevated blood pressure and was prescribed medication at that time. In September 2008 statements, he reported that his first recorded "high blood pressure" was done in Great Lakes, Illinois dispensary some time in 1985 or early 1986 while he was attending school. He also indicated that he was seen for hypertension since 1990, and was treated for hypertension while on active duty. While the Board finds that the Veteran is competent to identify treatment at any time, and is credible in identifying treatment for hypertension during his second period of service, the Board finds that he is not credible in his assertion that hypertension was initially diagnosed during service. In that regard, the evidence of record shows that essential hypertension was first diagnosed in August 1985, prior to service enlistment in September 1985. An August 1985 treatment report from the Navy Hospital in Great lakes, Illinois shows that the Veteran requested an evaluation for possible hypertension, and that he had been told on several occasions that his blood pressure was high; however, the Veteran never had serial blood monitoring or a medical evaluation for medications. An examination was completed and past blood pressure readings taken in 1984 and 1985 were noted. The Veteran was diagnosed mild to moderate hypertension, present since at least July 1984, and was started on atenolol for treatment of hypertension. The Veteran was seen for a follow-up appointment in early September 1985 and was continued on atenolol daily. Because hypertension was diagnosed in August 1985, the Board finds that the Veteran's assertion that this treatment was only for high blood pressure is not credible, and he has not provided credible evidence with respect to the date of his diagnosis of hypertension. The Board finds that hypertension was "noted" at service entrance in September 1985. See 38 C.F.R. § 3.304(b). A September 1985 reenlistment examination report noted that the Veteran had hypertension and was on medication for hypertension. Later September 1985 treatment reports continue to reflect treatment with Tenormin (atenolol). An August 1986 treatment report shows that the Veteran had a diagnosis of essential hypertension since August 1985, and had been on atenolol daily with good results. A November 1988 annual examination identifies a 1985 diagnosis of hypertension treated with atenolol. Service treatment records dated from September 1985 to September 1995 reflect continued treatment for hypertension. While later October 1998, November 1998, and June 2003 post-service treatment reports submitted by the Veteran identify a nine-year history of hypertension, hypertension since 1989, or 15-year history of hypertension, respectively, the Board finds that contemporaneous Navy hospital records and service treatment records, documenting an initial diagnosis of hypertension in August 1985, are of more probative value than later inaccurate medical histories which do not clearly identify a date of onset based on the medical record. The Veteran also submitted a March 2006 letter from Dr. R.P., who stated that a review of the Veteran's health record shows that he was first treated for hypertension in 1989. The Board finds that the medical history provided by Dr. R.P. was not based on a review of service treatment records and is inconsistent with contemporaneous medical evidence identifying a diagnosis of hypertension and treatment for hypertension in 1985, and thus, is not probative. Because hypertension was noted on the Veteran's September 1985 reenlistment examination, and an August 1985 treatment report identifies a diagnosis of hypertension just prior to service enlistment, the Board finds that hypertension preexisted service. The Board finds that preexisting hypertension, clearly and unmistakably, was not aggravated by service, and any increase in symptoms in service was due to the natural progress of the disease. As noted above service treatment records show that the Veteran was started on medication for treatment of hypertension prior to service, and continued to receive treatment for hypertension in service. A July 1995 separation examination reflects a diagnosis of borderline elevated blood pressure/hypertension. A March 2009 letter from J.G., CDR, MC, from the U.S. Naval Hospital identified a history of treatment for hypertension from an August 1985 initial evaluation to May 1995. He noted that medications were not being taken in February 1991 and higher blood pressure readings were shown in May 1995, but did not provide any opinion with regard to aggravation. Because the March 2009 letter noted an increase in blood pressure readings prior to service separation in July 1995, the Board will next address whether this represented an increase in hypertension during service, and whether this increase went beyond the natural progression of the condition. See Hunt v. Derwinski, 1 Vet. App. at 297 (holding that a temporary or intermittent flare-up during service is not considered aggravation in service, unless the underlying condition has worsened); 38 U.S.C.A. § 1153, 38 C.F.R. § 3.306. 38 C.F.R. § 3.306 provides that a preexisting injury or disease will be considered to have been aggravated by 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. The Board finds that hypertension, clearly and unmistakably, was not aggravated by service, and the 1995 elevation in blood pressure readings is shown by a January 2012 VA opinion to be due to the natural progress of the disease. The Veteran was afforded a VA examination in December 2011 and was diagnosed with current hypertension. A separate January 2012 VA opinion was provided based on a review of the evidence of record. The January 2012 VA examiner discussed specific findings from service treatment records, noting that hypertension was well controlled in 1985 and 1986 with medication. The examiner also noted the May 1995 progress note, which shows that the Veteran had been off medication for five years due to the fact that his blood pressure was controlled and she noted blood pressure readings taken at that time. The VA examiner stated, based on evaluation of the record, that service did not aggravate blood pressure beyond normal, but due to the fact that the Veteran's hypertension was controlled and medication was discontinued, there was an elevation in blood pressure. The VA examiner opined, however, that the Veteran's hypertension did not progress beyond the natural condition in service or otherwise. She noted that the Veteran received current treatment for hypertension and hypertension was under good control. She opined, therefore, that there was no evidence that hypertension was exacerbated since reenlistment. According to Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The Board finds that the January 2012 VA opinion provides competent, credible, and probative evidence showing that the increased blood pressure readings in 1995 did not represent an increase in disability in service from September 1985 to September 1995. Moreover, the Board finds that the opinion provides clear and unmistakable evidence showing that hypertension was not aggravated in service, and that it did not progress beyond the natural progression of the disease. The opinion was based on a review of the record and the VA examiner provided adequate reasoning for the opinion based on findings from the record, to include a discussion of the reasons for the elevation in blood pressure readings in May 1995. The Board finds that the opinion is probative as it was based on an accurate factual background and the examiner included sound reasoning for the opinion. See Reonal, 5 Vet. App. at 461; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"). For these reasons, the Board finds that hypertension, noted at service entrance, preexisted service, clearly and unmistakably was not aggravated by service, and any increase in symptoms was due to the natural progress of the disease. For the reasons discussed above, the Board finds that service connection for hypertension is not warranted. Because the preponderance of the evidence is against service connection for hypertension, the claim must be denied, and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hypertension is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs