Citation Nr: 1333344 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 05-12 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active duty service from August 1969 to April 1972 and September 1974 to October 1986. The Veteran served in the Republic of Vietnam from May 1970 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in Philadelphia, Pennsylvania. The Veteran testified in a Travel Board hearing before the undersigned Acting Veterans Law Judge in July 2010 from Waco, Texas; a transcript of that hearing is associated with the claims file. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. This case was previously before the Board in April 2011, wherein it was remanded for additional due process considerations and development. The case was returned to the Board for appellate consideration. Unfortunately, the Board found that still further development is required, as the RO had not fully complied with the Board's April 2011 remand directive, and in February 2013, the Board remanded the Veteran's claim for additional development, which was completed. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). The case has been returned to the Board. FINDING OF FACT Hypertension was manifested within one year of separation of service and is attributable to service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1131, 1137 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (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). In this decision, the Board is granting the claim being decided herein. Further discussion of the VCAA is therefore unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease (including hypertension), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. As cardiovascular-renal disease (i.e., hypertension) is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis for Service Connection The Veteran's service treatment records are negative for a diagnosis of hypertension. Blood pressure readings were 130/90 in June 1975, 130/90 in February 1981, and 120/94 in September 1985. In October 1985, he denied a history of hypertension. At his October 1986 separation examination, his blood pressure was 128/88. In September 1987, the Veteran underwent a VA examination, wherein his blood pressure was 140/100 sitting, 134/90 recumbent, 138/96 standing, 144/88 standing after exercise, and 132/94 5 minutes after exercise. The Veteran was initially afforded a VA examination in connection with his current claim in September 2008. That report indicates that the Veteran has been treated for hypertension with medication since January 2004, although the Veteran reported a history of treatment for hypertension in 1985. Blood pressure at that examination was 150/88, 150/88, and 150/86. The VA examiner concluded that the Veteran's hypertension was less likely than not related to military service. The Veteran was afforded another VA examination in September 2012. According to that report, the Veteran currently has hypertension, initially diagnosed in 1979. The Veteran reported a history of treatment for hypertension since 1982, and that, in 1979, he was found to have elevated blood pressure. The VA examiner opined that the etiology of the Veteran's hypertension is unknown and that the diagnosis was essential hypertension. The VA examiner stated that the Veteran's hypertension is not related to his renal function or a cardiac disorder. The VA examiner stated that the Veteran does not have a cardiac disorder; however, the Board notes that service connection is in effect for mitral valve regurgitation. The VA examiner was requested to provide a rationale for this opinion in the aforementioned February 2013 Board remand. In a June 2013 addendum, the VA examiner opined that the Veteran's hypertension is less likely than not proximately due to the Veteran's service-connected mitral valve regurgitation. The VA examiner also stated that there is no indication that the Veteran's military service or service-connected mitral valve regurgitation caused or aggravated the Veteran's hypertension beyond its normal progression. The VA examiner stated that the Veteran's hypertension was first manifested in September 1987. The Board finds that the medical evidence of record supports the Veteran's contention that his hypertension is related causally to his service. The Board finds that the September 1987 VA examination demonstrates that the Veteran's hypertension manifested within a year of his discharge from service. Moreover, a diagnosis of hypertension at that time is consistent with the circumstances of his service, i.e., the Veteran's elevated blood pressure readings during service. Moreover, although hypertension was not shown by the available medical evidence to have been diagnosed during service or within several years thereafter, including at that September 1987 VA examination, hypertension was subsequently diagnosed, the Veteran has been on medication for hypertension since 2004, and the June 2013 VA addendum opinion clarified that the Veteran's blood pressure readings at the September 1987 VA examination indicated a diagnosis of hypertension. Further, the Board finds that the Veteran's report of an in-service onset to be credible. Therefore, the Board finds that service connection for hypertension is warranted. The appeal is granted. ORDER Entitlement to service connection for hypertension is granted. ______________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs