Citation Nr: 1333637 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-38 472 ) 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 ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was last remanded in May 2013 for further development. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of both of these electronic records. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's current hypertension disability was not manifest in service or to a degree of 10 percent within one year of service separation and is unrelated to service. 2. The Veteran's current hypertension disability was not caused or aggravated by his service-connected diabetes mellitus, PTSD, bronchial asthma, amebiasis, or hemorrhoids. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in January 2006. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). That notice did not contain the notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006), concerning effective date and degree of disability. However, such notice was provided in October 2007, followed by subsequent adjudication, curing the timing defect. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Moreover, as service connection is being denied for hypertension, matters of effective date and degree of disability for the claim are moot. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for hypertension in October 2007, August 2008, and June 2009; and afforded the Veteran the opportunity to give testimony before the Board. VA attempted to examine the Veteran again in January and November 2012 pursuant to December 2011 and November 2012 Board remands, but the Veteran failed to appear for those examinations and has not given any reason for such. Thereafter, the Board obtained a VHA medical opinion in August 2012 and remanded the case to the RO for additional records and another medical opinion on the matter at issue, and such was performed in June 2013. There are medical opinions of record on the matters of whether the Veteran's hypertension was manifest in service or within 1 year of separation; and caused or aggravated by each of his service-connected disabilities. The examiners reviewed and considered evidence in the Veteran's claims folder in rendering their opinions, and examined the Veteran when possible, and explained their opinions in light of the evidence, and so they are adequate. The Board finds that it owes no further duty to the Veteran, in terms of assistance at this point. The Board notes that under the circumstances present, since the Veteran failed to appear for examinations, the claim is to be decided on the record. 38 C.F.R. § 3.655(b) (2013). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's May 2013 remand by obtaining an adequate VA medical opinion and readjudicating the Veteran's claim. The representative noted in August 2013 that the VA examiner who rendered a medical opinion in June 2013 opined that he cannot resolve the issue of whether the Veteran's PTSD aggravated his hypertension without resorting to mere speculation. He argued that this opinion is in essence not evidence either for or against the claim, and that further examination is therefore necessary. However, the examiner indicated that the Veteran's hypertension is stable. That means there has been no increase in the severity of it. Also, the examiner indicated that PTSD is not recognized as a causative factor for hypertension, either etiologically or by aggravation. For these reasons, the report is adequate on the matter of whether the Veteran's PTSD aggravated his hypertension. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The issue before the Board involves a claim of entitlement to service connection. The Veteran has claimed that service connection is warranted for his hypertension as secondary to his service-connected diabetes mellitus, posttraumatic stress disorder, or other disabilities, which are bronchial asthma, amebiasis, and hemorrhoids. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in 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; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). 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 nonservice 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. The Veteran's service treatment records are silent for reference to hypertension or hypertensive blood pressure readings, and the Veteran was clinically normal on service discharge examination in June 1969. On private evaluation in July 2005, the Veteran denied a history of diabetes and reported a history of high blood pressure. Uncontrolled hypertension was found. The Veteran first claimed service connection for hypertension as secondary to diabetes mellitus, in January 2006. On VA examinations in October 2007, August 2008, and June 2009 (this one found on Virtual VA), the matter of a causal relationship between the Veteran's service-connected diabetes mellitus and his hypertension was explored. The examiners each felt that it was less likely than not that the Veteran's hypertension was due to his service-connected diabetes mellitus, as he had normal renal function. The examiner in October 2007 felt that the Veteran's hypertension was less likely than not due to diabetes as he had normal renal function. The examiner felt that the Veteran more likely had primary essential hypertension. The examiner in August 2008 indicated that the Veteran's hypertension was diagnosed in 2005 and diabetes mellitus was diagnosed in 2004, and that there was not enough time between the two in the Veteran's case for the diabetes mellitus to cause his hypertension. The examiner in June 2009 felt that the Veteran's hypertension was not due to his service-connected diabetes mellitus because diabetes is not an independent risk factor and there was no renal involvement. In June 2012, the Board requested a VHA medical opinion on the matters of whether the Veteran's hypertension was manifest in service or within 1 year of discharge; proximately due to or caused by his service-connected diabetes mellitus, PTSD, bronchial asthma, amebiasis, or hemorrhoids; or was aggravated by his service-connected disabilities, including the ones mentioned above. In response, an August 2012 VHA medical report was prepared. The examiner reviewed the Veteran's claims folder and concluded that it was not at least as likely as not that the Veteran's hypertension was manifested during service or within 1 year of discharge. He noted that the first time the Veteran's hypertension was mentioned was in a 2005 medical record. The examiner noted that earlier medical records showing hypertension either do not exist, or the Veteran's hypertension was first manifest at age 58. It was further noted that the Veteran had a strong positive family history for hypertension some 36 years after leaving service. Indirect evidence corroborating that conclusion could be drawn from his normal heart size on chest X-ray in November 2007; the absence of any hospitalization for complications of chronic hypertension; normal kidney function based on lab studies in 2005 and 2007; a normal heart exam and electrocardiogram; and the absence of any symptoms or signs in his abnormal cardiovascular system in general. The VHA examiner also concluded that it was not at least as likely as not that the Veteran's hypertension was proximately due to his diabetes mellitus, PTSD, bronchial asthma, amebiasis, or hemorrhoids. Regarding diabetes mellitus, he reviewed the record and came to the conclusion that there was more clinical and medical evidence supporting the temporal precedence of hypertension to diabetes mellitus than the other way around. He indicated that any objective evaluator would be hard pressed to concede more than contemporaneous development of the two diseases (for reasons based on information contained in the medical records), and that the Veteran's hypertension definitely did not follow the onset of his diabetes mellitus. The VHA examiner indicated that it was very unlikely that the Veteran's hypertension was caused by his PTSD, because his PTSD was first diagnosed in October 2007, whereas his hypertension had been diagnosed more than 4 years prior, according to a May 2005 medical record. Since the hypertension predated the PTSD, it was difficult to agree with the contention that it was caused by PTSD. The VHA examiner felt that the probability of bronchial asthma, amebiasis, or hemorrhoids causing the Veteran's hypertension was exceedingly low, and definitely far less than 50 percent. The reasons were that none of the available medical records showed persistent lung or bowel conditions. The only 2 hospitalizations (both for dysentery) had occurred way back in 1968. If there had been any symptoms not noted or mentioned to the Veteran's physicians, they would appear to have been of such a mild or transient nature that he never took any medications chronically. Third, it was hard to consider the Veteran's hypertension as being caused by any of those 3 conditions based on current scientific concepts on the pathogenesis of elevated blood pressure and on physicians' understanding of blood pressure regulation in published literature. The VHA physician's opinion was that the Veteran's diabetes mellitus did not aggravate his hypertension. The Veteran's diabetes mellitus was easily controlled, and his levels of A1c are very unlikely to induce any vascular complications. Also, his blood pressure control, both before and after the diagnosis of diabetes mellitus, was essentially the same -- mostly in the very acceptable range -- while he was taking his medications, with no indications of worsening after July 2005 when diabetes mellitus was diagnosed. The VHA physician also found it very improbable that the Veteran's hypertension could be aggravated by the chronic asthma or amebiasis, as they had rarely if ever produced any registered symptoms or required medication, hospitalization, or clinic visits for treatment. The VHA examiner recommended that further medical evidence be obtained before an opinion was made on the matter of whether the Veteran's PTSD aggravated his hypertension. The Veteran failed to report for a VA examination in January 2013. In June 2013, a VA medical opinion was obtained. The Veteran's medical record was reviewed. It was noted that as of July 2009, the Veteran was having mild PTSD symptoms. The examiner noted that the Veteran was 65 and considered his blood pressures over the course of time. He noted the Veteran's BMI of 30+, moderate alcohol usage reported in the record, and his smoking history. He noted that 80 to 95 % of hypertensive patients are diagnosed as having essential (primary or idiopathic) hypertension, while in the remaining 5-20 %, a specific underlying disorder causing the elevation of blood pressure could be identified. According to a medical treatise, risk factors for primary or essential hypertension include being black, in which case it tends to be more common and more severe; maternal, paternal or both parents with hypertension; excess sodium or alcohol intake; obesity and weight gain; physical inactivity; and dyslipidemia. He indicated that it was notable that PTSD is not listed as a recognized causative factor, either etiologically or by aggravation. It was noted that the Veteran's race, weight, and dyslipidemia are among the risk factors present in this case. Also, his hypertension had been relatively stable on medical management based on the available evidence. Hence, the examiner felt that it would require speculation to attribute aggravation of the Veteran's hypertension to his PTSD based on the available record and currently recognized risk factors. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's hypertension. No evidence shows that it was manifest in or related to service or manifest to a degree of 10 percent within 1 year of separation. Furthermore, no evidence shows that it was caused or aggravated by a service-connected disability. To the contrary, the VA examiners have come to the conclusions that the Veteran's hypertension was not caused or aggravated by his service-connected disabilities, giving reasons which are based upon the evidentiary record and medical principles. There is no competent medical evidence of record to the contrary. With regard to the question of whether the Veteran's PTSD aggravated his hypertension, the preponderance of the evidence indicates that it did not. The examiner in August 2013 noted that the Veteran's hypertension had been stable, thus suggesting no increase in severity. Additionally, his notation that it is not recognized as a cause or aggravator of hypertension is an indication that there is no reasonable evidence indicating that the Veteran's PTSD aggravated his hypertension. While the Veteran may feel that one or more of his service-connected disabilities caused or aggravated his hypertension, he has demonstrated no competence to provide this type of medical opinion. Accordingly, any opinions of his on these matters are not considered to be competent. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In light of the above, the Board concludes that service connection is not warranted for the Veteran's hypertension. No competent evidence shows that it is related to service or that it was caused or aggravated by a service-connected disability. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for hypertension is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs