Citation Nr: 1332233 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 08-34 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for renal failure with frequent urination (renal disease) to include as secondary to hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded the issues to afford the Veteran a VA examination and nexus opinion in August 2012. The opinion was provided in November 2012. The Board subsequently remanded the issues again in July 2013 to obtain an additional nexus opinion. The response was provided in August 2013. Although the examiner did not specifically respond to the Board's questions, in light of the grant of service connection in the decision below, the Board finds that the Veteran is not prejudiced. Therefore, an additional remand is not required to ensure compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a renal disability 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 Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's hypertension was compensably disabling within one year of separation from service. CONCLUSION OF LAW Hypertension was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for hypertension. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary regarding this issue. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Pertinent to the case at hand, hypertension is among the list of chronic diseases listed within 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that he has hypertension that began during service and was diagnosed within one year after separation from service. Service treatment records show several elevated blood pressure readings, to include 146/80 at entry into service, 156/78 in July 1984, and 132/70 at separation from service. Additionally, at separation from service, the Veteran reported that he did not know whether he had a history of high or low blood pressure. This notation indicates that the Veteran acknowledged some discrepancy in his blood pressure findings. Post-service, the Veteran claims that he was diagnosed with hypertension within one year after separation from service. The record contains numerous lay statements from his wife, mother, and sister asserting that they witnessed his complaints of high blood pressure and that he was on medication immediately after separation from service. Additionally, the Veteran submitted a December 1999 private treatment record that showed no blood pressure checks in the past five years. However, the examiner noted that in 1986 he was seen by Dr. Michael Walker and referred to Dr. Nixon for hypertension and was put on antihypertensive medications at that time. According to the December 1999 record, the Veteran discontinued his blood pressure medications at some point after that. Lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value and that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Veteran was receiving medical treatment at the time of the December 1999 report. Additionally, the statement was made eight years prior to his claim of service connection, confirming that he did not make the statement to obtain any personal gain. The Board acknowledges that the November 2012 VA examiner, who also followed up in July 2013, noted that the Veteran's hypertension was not caused by service or service-connected disabilities and did not develop within one year of separation from service. The examiner cites the letters from his family noting that he started medication immediately after service, but the examiner found that the Veteran started medication in 2001. He specifically noted no evidence of any event happening during service or prior to 2001. The Board finds this examiner's opinion to be based on an inaccurate medical history. The examiner based his opinion on the medical records showing treatment of hypertension beginning in 2001; however, the record now contains a December 1999 treatment record which clearly shows an onset as early as 1986. Additionally, the examiner looked at the average of the Veteran's blood pressure readings during service to determine that hypertension did not begin during service. He did not address whether the multiple high readings were early manifestations of hypertension even if interspersed with normal blood pressure readings during service. Additionally, the examiner dismissed the lay statements of the Veteran and his family because they associated his hypertension with headaches. The Board notes that the family does not possess any medical education and, although the Veteran's headaches may not be causally linked to his hypertension, he and his family are competent to state that he was diagnosed with hypertension when he was seen for complaints of headaches, as that is subject to lay observation. Based on this evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's hypertension was diagnosed in 1986 and manifested to a compensable level at that time. Therefore, service connection for hypertension is warranted. ORDER Service connection for hypertension is granted. REMAND The Board notes that the Veteran is claiming service connection for a renal disability as secondary to his hypertension. As service connection is now granted for hypertension and the evidence is conflicting regarding the cause of the Veteran's renal disability, a new VA examination and opinion is necessary. An August 2001 private treatment record showed chronic renal insufficiency, most likely related to longstanding hypertension with possible contribution from Celebrex that the Veteran was taking for his back pain. The other likely differential diagnostic possibility would be focal segmental glomerulosclerosis, however, one would expect a much higher degree of proteinuria, usually within a nephritic range. In the November 2013 VA examination, the examiner noted that the Veteran's kidney issue is most likely hereditary as evidenced by literature and by the fact that the Veteran's father has a similar medical history. The examiner did not address the August 2001 examiner's doubts regarding the proteinuria levels. Accordingly, the issue is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of the onset, nature, extent and severity of his renal disability, as well as any medical evidence addressing whether his kidney disability is related to or had its onset in service or was caused or aggravated by his service-connected hypertension. The Veteran should be provided an appropriate amount of time to submit this evidence. 2. Obtain, physically or electronically, all outstanding VA treatment records. If such records cannot be obtained or if no such records exist, document such findings. 3. After associating all pertinent outstanding records with the claims file, schedule the Veteran for a VA examination regarding the Veteran's kidneys. The examiner should review the claims file and address the following questions: a.) Is it at least as likely as not that the Veteran's kidney disability is related to or had its onset in service or developed within a year of his discharge from active duty? b.) Is it at least as likely as not that the Veteran's diagnosed renal disabilities are causally or etiologically related to the Veteran's service-connected hypertension? The examiner should address the August 2001 positive nexus opinion and the November 2012 negative VA nexus opinion. c.) Is it at least as likely as not that the Veteran's diagnosed renal disabilities are aggravated by the Veteran's service-connected hypertension? 4. Then, readjudicate the appeal. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs