Citation Nr: 1332847 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-26 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active military duty from January to June 1981 and from July 1985 to July 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's claims file is currently in the jurisdiction of the Nashville, Tennessee RO. In February 2012, the Veteran testified at a Board video hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In the April 2012 and July 2013, the Board remanded the claim for further development. FINDINGS OF FACT The Veteran has hypertension that had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 1101(3), 1112 (West 2002); 38 C.F.R. §§ 3.303(b), 3.304, 3.307, 3.309(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist 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. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. II. Factual Background & Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including hypertension, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" (Walker, 708 F.3d at 1339), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of a link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. "If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. See also 38 C.F.R. § 3.303(b). The primary difference between a chronic disease listed under section 3.309(a) which qualifies for analysis under 3.303(b) and other chronic diseases which must be tested under section 3.303(a) "is that the latter must satisfy the 'nexus' requirement of the three-element test [for service connection], whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology." Walker, 708 F.3d at 1338-39. In rendering a decision on appeal, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that her hypertension arose during her years of active service and/or was caused or aggravated by her service-connected interstitial cystitis. Specifically, the Veteran contends that her elevated blood pressure readings in service were early manifestations of her current hypertension. See December 2008 Statement of the Veteran, December 2008 notice of disagreement (NOD); and February 2012 Hearing Transcript, (T.) pp. 3-4. The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104 , Diagnostic Code 7101, Note 1. Under the VA Schedule for Rating Disabilities, the requirements for a 10 percent rating for hypertension are "diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control." Id. Service treatment records include a March 1985 enlistment examination report showed a blood pressure reading of 110/62. A clinical evaluation of the heart was normal. Elevated blood pressure readings were recorded on several occasions between April 1968 and May 2005 (i.e. 120/80, 132/91, 166/72, 136/92, 130/82, 159/100, 163/78, 173/102, 123/81, 137/88, 132/88, 133/71, 130/80, 130/98, 129/84, 125/75, 148/95, 140/94, 127/89, 130/94, 122/91, 133/71, 123/88, and 110/78) Additionally, on March 2004 Medical Board examination, the Veteran's blood pressure readings were as follows: 139/96, 137/97, and 137/89. On May 2005 VA examination, prior to the Veteran's discharge from service, her blood pressure readings were 135/84, 139/92, and 140/103. A February 2006 VA outpatient treatment records from Central Texas Health Care System, included a blood pressure reading of 138/88. In May 2006 it was 148/99 and the Veteran was ordered to return to the clinic for a blood pressure check. Subsequently in June 2006, her blood pressure was 131/89. In September 2006, her blood pressure was 143/97. The physician noted that the Veteran had high blood pressure, diagnosed her with hypertension, and she was started on atenolol for blood pressure treatment. November 2009 treatment records recorded the Veteran's blood pressure as 140/92 and included a past medical history of hypertension (September 2009) and elevated blood pressure readings (May 2006). While there is evidence of elevated blood pressure readings in service and a current diagnosis of hypertension, there are conflicting medical opinions as to whether the Veteran's hypertension is related to service or service-connected interstitial cystitis. The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994). On November 2007 VA examination, the examiner noted that the Veteran's blood pressure has fluctuated over the last several years with a high of 153/96 in September 2006 and a low of 131/89 in June 2006. The examiner noted that the Veteran was diagnosed with hypertension in September 2006 and prior to that time her blood pressure was 131/89, 138/88, and 139/92. The examiner determined that it was less likely than not that the Veteran's hypertension is secondary to her interstitial cystitis. However, as the examiner provided no supporting rationale for that opinion, did not address whether the cystitis aggravated her hypertension, and did not provide an opinion regarding direct service connection, the claim was remanded in April 2012 for an adequate VA opinion. The Veteran was afforded another VA examination in May 2012, and the VA examiner was asked to discuss whether the Veteran's hypertension was aggravated by her interstitial cystitis. In addressing this question, the VA examiner indicated that there were multiple notes related to interstitial cystitis, but unfortunately, all notes did not contain "VS's" (the Board assumes this refers to vital signs), and the ones that did have "VS's" did not support the claim that interstitial cystitis aggravated hypertension or hypertension aggravated interstitial cystitis. Additionally, the examiner reported numerous blood pressure readings from the Veteran's service treatment records when the Veteran was treated for interstitial cystitis, hip and leg pain, upper respiratory infection, headaches, and a lump on her back. The examiner initially reported that elevated blood pressure readings without a diagnosis of hypertension could be caused from pain, stress, and anxiety. The examiner added that the noted stressors resulted in elevated blood pressure readings without a diagnosis of hypertension. The examiner reported that while the Veteran was on active duty, she was treated for low back pain, migraines, hip and leg pain, abdominal pain (not interstitial cystitis), and uterine bleeding all of which could result in the elevation of blood pressure without a diagnosis of hypertension. The examiner reported multiple blood pressure readings post service. In July 2013, the Board remanded the claim again after finding that the examiner failed to provide an explanation of the relevance of these post service blood pressure readings. On July 2013 VA examination, the examiner noted that the claims file was reviewed. The examiner was of the opinion the Veteran's current hypertension was not caused by or aggravated (permanently worsened beyond normal progression) by the service-connected interstitial cystitis. The rationale was there is no evidence of hypertension associated with interstitial cystitis. The examiner recorded blood pressure readings at the same time that interstitial cystitis was listed in the service treatment records and noted that all blood pressure readings were within normal limits. The examiner still failed to provide an explanation of the relevance of the post service blood pressure readings. Overall, an adequate opinion still has not been provided as to whether or not the Veteran's current hypertension began in or is otherwise the result of service. Although an August 2009 VA treatment record included an assessment that the Veteran's hypertension was as likely as not related to high blood pressure that the Veteran stated was found in the military, a rationale was not provided. Additionally, the May 2012 VA opinion suggested that the Veteran's low back pain, migraines, hip and leg pain, abdominal pain (not interstitial cystitis), and uterine bleeding all of which are service-connected conditions could result in the elevation of blood pressure. Despite the lack of probative value of the multiple opinions, the Board has also considered whether service connection is warranted on a presumptive or continuity of symptomatology basis. There were some diastolic blood pressure readings of 90mm. or greater in service, and at least two instances of systolic pressures of 160mm. or greater with a diastolic blood pressure of less than 90mm; however, a diagnosis of hypertension was not shown in the service treatment records. Therefore, although hypertension is on the list of chronic diseases under 3.309(a), it cannot be said that the disease was "shown as such" in service or clearly diagnosed in service beyond legitimate question. Walker, 708 F.3d at 1339. Moreover, of the multiple blood pressure readings noted in service, it cannot be concluded that the diastolic blood pressure was "predominantly" 90mm. or greater or systolic pressures of predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm as required for a clear diagnosis of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Thus, although there were some manifestations of the disease entity in service, i.e., diastolic readings of 90mm. or greater, or at least two instances of systolic pressures of 160mm. or greater it appears that there were not sufficient manifestations to warrant a diagnosis of the disease or "sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings." 38 C.F.R. § 3.303(b). Therefore, it appears that this is the kind of situation contemplated by section 3.303(b) where, for the purposes of establishing service connection, continuity of symptomatology is required to show a nexus between the disease of hypertension diagnosed after service and isolated findings of the disease entity in service. In other words, although there was some evidence of high blood pressure readings in service, these readings or notations were insufficient to support a diagnosis beyond legitimate question, and therefore, this is not a case where "subsequent manifestations of the same chronic disease at any later date, however remote, are service connected . . . " without a showing of continuity of symptomatology to establish chronicity of the disease. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339 ("When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim."). After the Veteran's discharge from active service in July 2005, the diagnosis of elevated blood pressure readings was rendered within one year in May 2006. See November 2009 VA treatment record. Although it appears that the subsequent diagnosis of hypertension in September 2006 was based on the Veteran's elevated blood pressure readings, which were documented within one year of discharge. However, there is no evidence to suggest that the disease was severe enough to reach VA's requirement of a disability level of 10 percent or more, such that it can be presumed that the disease began during service under the provisions of law establishing such a presumption for chronic conditions manifested to a certain degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). In this regard, the Board notes that each single blood pressure reading of 138/88 shown in February 2006, a blood pressure reading of 148/99 shown in May 2006, and a blood pressure reading of 131/89 shown in June 2006 in the year after discharge, cannot be said to meet VA's definition for hypertension based on diastolic blood pressure predominantly 90mm. or greater, or meet VA's definition for isolated systolic hypertension based on systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." because it cannot be said that this level "predominated" based only on a single reading38 C.F.R. § 4.104 , Diagnostic Code 7101, Note (1) ("Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.") (emphasis added). Nevertheless, this is not a case where, "even though there is no evidence of [the chronic] disease during the period of service," the disease may be presumed to have been incurred or aggravated in service if it manifests to a degree of 10 percent disabling or more under VA regulations defining the degree of disability for such disease. 38 C.F.R. § 3.307(a). Rather, this is a case where there is evidence of manifestations of hypertension in service and within the first post service year, but such manifestations were not sufficient for a clear diagnosis. Therefore, the presumptive provisions for hypertension shown to a degree of 10 percent or more in the year after service are not relevant here. Instead, the Board believes that, for service connection to be granted, this is a case where continuity of symptomatology after service is required in order to conclude under the provisions of section 3.303(b) that the findings in service of diastolic blood pressure readings of 90mm. or greater were, in fact, the early manifestations of the chronic disease of hypertension that was diagnosed in September 2006 and continues to the present day. The Board finds that this requirement has been met in this case. Concerning this, the Board notes that the symptoms of the disease have been continuous, as documented by many elevated blood pressure readings in service, including on the May 2005 pre-discharge VA examination as well as post-service treatment records beginning in May 2006, ten months after discharge from active service when the VA treatment records noted that the Veteran had elevated blood pressure readings and was advised to return to the clinic for follow up blood pressure checks. The follow up blood pressure checks led to a diagnosis of hypertension and treatment was begun. Accordingly, the Board concludes that service connection may be granted in this case for the chronic disease of hypertension based on continuity of symptomatology after service which serves to prove that the high diastolic blood pressure readings in service were actually the early manifestations of the chronic disease of hypertension. 38 C.F.R. § 3.303(b); see also Walker, 708 F.3d at 1337-39. For the reasons noted above, the Board finds that the requirements for service connection for hypertension based on continuity of symptomatology of a chronic disease listed under section 3.309(a) have been met. 38 C.F.R. § 3.303(b). ORDER Entitlement to service connection for hypertension is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs