Citation Nr: 1333298 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-33 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1962 and from June 1965 to March 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2011, the Board remanded the issue on appeal for additional development. There has been substantial compliance with the mandates of the remand and the Board will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of service connection for an anxiety disorder has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The Veteran's current hypertension disability was not incurred in or aggravated by active service and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for establishing service connection for hypertension, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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; and (3) that the claimant is expected to provide. Notice should be provided to the claimant before the initial unfavorable adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirement applies to all five elements of a service-connection claim, including: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by a letter dated in March 2006. However, that notice did not include the necessary notice requirement for establishing secondary service connection. Corrected notice was provided in August 2011 and the claim was readjudicated by the RO in November 2012. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records, VA treatment records, private treatment records, and the Veteran's own assertions in support of his claim. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran was afforded a VA examination in March 2009. The Board remanded the appeal to request an addendum medical opinion that was provided in October 2012. The Board finds that the VA examination and opinion were adequate as the examiners reviewed the claims folder, considered the Veteran's history and the examination results, and provided rationales for the opinions offered. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Hence, no further notice or assistance to the appellant is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including hypertension, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. § 3.309. Under 38 C.F.R. § 3.310, service connection on a secondary basis may be granted for a disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). During the course of this appeal 38 C.F.R. § 3.310 was amended. Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the decision in Allen, which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board acknowledges that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). III. Analysis Turning first to direct service connection, the Board notes that the Veteran has a current diagnosis of hypertension. The earliest diagnosis of hypertension is from September 2003 and found in post-service Womack Army Medical Center treatment records. Since that time the Veteran has been treated for hypertension. The issue is whether there is clinical evidence of hypertension in service. In deciding this issue, the Board considered service treatment records, a VA examination and opinions, VA treatment records, private medical records, the Veteran's representative's arguments, and the Veteran's own assertions in support of the claim. The Board notes that the private treatment records, dated from April 1992 to March 2006, do not offer any evidence of treatment or diagnosis of hypertension. In his claim, the Veteran asserts that he was first diagnosed with hypertension while in service in 1972 or 1973. In written briefs provided in July 2011 and September 2013, the Veteran's representative noted elevated blood pressure readings during service and a notation in the service treatment records that mentions hypertension. The Board notes that there were elevated blood pressure readings during service. A VA examination was conducted in March 2009. The examiner reviewed the claims file, including the medical records. At the examination, the Veteran stated he was diagnosed with hypertension in 1975. After reviewing the service treatment records, the examiner indicated that the records, including the separation examination, do not confirm a diagnosis of chronic hypertension. The Board notes that the separation examination was conducted in January 1989. The Veteran indicated on his report of medical history at that time that he had never suffered from high or low blood pressure. A clinical evaluation of the heart at that examination resulted in normal findings. Further, the Veteran's blood pressure was within normal limits. The VA examiner indicated that post-service records indicate that the Veteran began using lisinopril in 2004 for renal protective effect against proteinuria. The Board notes that the examiner did not address the diagnosis of hypertension in September 2003. However, the Board finds that this does not prejudice the Veteran in any way as it does not impact the Board's decision. In addressing the treatment for elevated blood pressure in service, the examiner indicated that the Veteran "was treated for anxiety and acute blood pressure elevation associated with anxiety (treated with valium) while in service. Numerous subsequent blood pressure determinations (both in service and for years following service) were subsequently normal." The examiner's opinion was that "chronic hypertension was not caused by or a result of service." The rationale provided was that there was no diagnosis of chronic hypertension while the Veteran was in service. "The SMRs [service treatment records] do not support a diagnosis of chronic hypertension. Hypertension was not present for multiple years following separation from service." In an addendum opinion, a second VA examiner offered further rationale for the same conclusion. The second examiner also noted that the Veteran was diagnosed with elevated blood pressure in service but found that it was secondary to anxiety and was treated with valium. The examiner found that while the Veteran did have elevated blood pressure on many occasions from 1958-1981 ("although they were in the lower range for hypertension") they were never addressed or diagnosed as hypertension because the Veteran was being treated for anxiety. Thus, the examiners both found that the Veteran suffered from anxiety in service, not hypertension. At particular issue is the entry in the service treatment records from May 1979. The entry provides that the Veteran "has had mild hypertension for several years." However, the note indicated that the Veteran was being well controlled on valium for his anxiety. The Veteran and his representative argue that the May 1979 entry establishes a diagnosis for hypertension. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his condition. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran is not competent to provide a medical diagnosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). From a January 1978 entry, it is clear that the Veteran had been treated for anxiety for several years with valium. Further, the competent medical opinion from the two VA examiners is that the service treatment records and the elevated blood pressure readings from that time period indicate treatment and diagnosis of anxiety with elevated blood pressure, not hypertension. Thus, the May 1979 entry does not provide a basis for establishing service connection. The Board also finds that service connection is not warranted on a presumptive basis. As discussed above there was no treatment or diagnosis of hypertension during service within a year of service. The first diagnosis or hypertension came in September 2003, 14 years after service. Finally, the Board considered whether service connection was warranted on a secondary basis. In August 2011, the Board remanded this appeal to get a medical opinion on whether the Veteran's hypertension was caused or aggravated by the Veteran's service connected diabetes. In July 2005, a VA physician noted a diagnosis of hypertension, "aggravated by (to what extent is impossible to predict) but not caused by diabetes." This opinion does not adequately support a finding of service connection because the physician did not offer any rationale. A medical opinion must contain a rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) and Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the August 2011 remand, the Board requested a medical opinion and a rationale on this issue. The addendum opinion was provided in October 2012 after a review of the claims file. As discussed above, the examiner noted that the Veteran was seen for evaluations of high blood pressure multiple times in service. The examiner opined that "it is less likely as not (less than 50/50 probability) the Veteran's hypertension is caused by or aggravated by his diabetes." The rationale was that the elevated blood pressure evaluations, which were in the lower range for hypertension and were related to the Veteran's anxiety and being treated with valium, existed well before the diagnosis for diabetes, which was given in 2004. Further, the examiner opined that if a person does not have renal involvement then, per the medical literature, hypertension is not considered to be caused or aggravated by diabetes. "This [Veteran] does not have any renal components (abnormal microalbuminuria). His diabetes is diet controlled and his hypertension is controlled very well by the lisinopril he is on for the protection of his kidneys." Thus, the competent medical evidence weighs against a finding of secondary service connection. The Veteran submitted several pages printed from the Website for the Mayo Clinic to support his claim for secondary service connection. These documents indicate some correlation between diabetes and hypertension but they are not related to the Veteran's case and therefore not adequate to prove a connection in this instance. Further, nothing in the documents contradicts the competent medical opinions provided in this case. The competent medical evidence does not support a finding that secondary service connection is warranted. The October 2012 VA medical opinion provides a clear rationale based on the medical evidence in the claims file that the Veteran's diabetes did not cause or aggravate his hypertension. The Board's decision is the same whether applying the current or previous version of 38 C.F.R. § 3.310 since the competent medical evidence is clear there is no connection between the Veteran's hypertension and diabetes. Therefore, the Board finds that service connection cannot be granted. Accordingly, the preponderance of the evidence is against the claim. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs