Citation Nr: 1333465 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-12 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for cervical spine disability, to include as secondary to service-connected lumbar spine strain with spondylolysis and T-12 vertebral deformity with slight limitation of motion of thoracic spine. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected lumbar spine strain with spondylolysis and T-12 vertebral deformity with slight limitation of motion of thoracic spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from August 1982 to August 1986 and March 1988 to January 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a September 1009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to individual unemployability was raised by the Veteran in his May 2009 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of service connection for cervical spine 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. FINDING OF FACT The Veteran does not have hypertension that was incurred in or as a result of service, to include as secondary to his service-connected back disability. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from a 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 the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be awarded for certain chronic conditions where the evidence shows that the Veteran had the condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders, including hypertension, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 veteran 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. The Veteran contends that he has hypertension due to his inability to exercise or as a result of the pain medication he takes to treat his service-connected back disability. The Veteran is service-connected for lumbar spine strain with spondylolysis and deformity of the T-12 vertebral body with slight limitation of motion of the thoracic spine. Although the Veteran's VA treatment records do not list hypertension among the Veteran's diagnosed conditions, records show he has been prescribed metoprolol tartrate and amlodipine for "blood pressure/heart." The Veteran's highest blood pressure reading noted in his VA treatment records is a reading of 150/99 in January 2011 when a note states that he had not taken his hypertension medication yet that day. Even conceding that the Veteran has hypertension despite the clear lack of diagnosis in his VA treatment records, service connection cannot be granted as the evidence does not support that the condition is related to the Veteran's service. Specifically, the Veteran contends his hypertension is secondary to his service-connected back disability. However, the competent medical evidence does not support his contention. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). While the Board finds that the Veteran is competent to make lay observations, he is not competent to diagnose or opine as to the etiology of hypertension. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. As there is no other evidence suggesting a relationship between the Veteran's hypertension and his service-connected back disability, the Board finds service connection cannot be granted on a secondary basis. With regard to direct service connection, the Veteran's service treatment records do not show hypertension in service nor does the evidence show the Veteran's hypertension was caused by his service. Specifically, in May 1987 and February 1988 the Veteran denied a history of high or low blood pressure. Further, the evidence does not show that hypertension was diagnosed or manifest within one year of the Veteran's separation from service, much less manifest to a compensable degree. Overall, the preponderance of the evidence is against the Veteran's claim for service connection for hypertension. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2009. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. Thus, the duty to notify has been satisfied. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and VA treatment records. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was not afforded a VA examination, but none is required. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's hypertension is related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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, 16 Vet. App. 183. ORDER Service connection for hypertension, to include as secondary to service-connected lumbar spine strain with spondylolysis and T-12 vertebral deformity with slight limitation of motion of thoracic spine, is denied. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the issue of service connection for cervical spine condition so that the Veteran is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). In this case, the claims file does not include a medical opinion addressing whether the Veteran's cervical spine condition is related to service, to include as secondary to service-connected lumbar spine strain with spondylosis and T-12 vertebral deformity with slight limitation of motion of thoracic spine. In service connection claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the relationship of current disability to service, the United States Court of Appeals for Veterans Claims has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). The Veteran's VA treatment records reflect that he has complained of neck pain and stiffness. In April 2009 a VA doctor noted that the Veteran's neck MRI showed multi-level severe degenerative disease more than one would expect of the Veteran's age. The Veteran contends that his cervical spine condition is secondary to his service-connected back disability. Alternatively, he argues that due to being unable to stand for extended periods of time and walking with a cane as a result of his service-connected back disability, his cervical spine condition has been aggravated beyond the natural progress of the disease. The Board finds that the question of the relationship, if any, between the Veteran's cervical spine condition and his service-connected back disability must be addressed by an appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records since August 2011. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. 2. Schedule the Veteran for a VA compensation examination to obtain an opinion as to the nature and etiology of his claimed cervical spine condition. The claims folder must be made available to the VA examiner for review. Based upon a review of all the record, including service treatment records, history of the Veteran, and clinical findings, the VA examiner is requested to offer the following opinions: a) Is it at least as likely as not (a 50 percent or greater probability) that the cervical spine condition had its onset in active service or is otherwise related to active service; b) Is it as least as likely as not that the cervical spine condition was caused or permanently worsened beyond its normal progress by the Veteran's service-connected lumbar spine strain with spondylosis and T-12 vertebral deformity with slight limitation of motion of thoracic spine, and if so, to what degree. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs