Citation Nr: 1333877 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-03 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from September 1999 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a February 2012 decision, the Board denied the Veteran's service connection claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending, in June 2012, the Veteran's attorney and VA's Office of General Counsel filed a Joint Motion for Remand, in which the parties agreed that the Board's reasons and bases for finding that VA did not need to examine the Veteran were insufficient. In a June 2012 order, the Court vacated the Board's February 2012 decision and remanded the matter. In May 2013, the Board remanded the Veteran's claim for additional development, which included affording her a VA examination. As will be discussed in greater detail below, there was compliance with the directives contained in the remand, and the Board may proceed with this decision. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran has not been shown to currently have hypertension that manifested in service or within one year thereafter or that is causally or etiologically related to her military service. CONCLUSION OF LAW Hypertension was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in March 2008, prior to the initial decision on the claim in May 2008. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the March 2008 notice letter about the information and evidence that is necessary to substantiate her claim for service connection and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any other outstanding records that are pertinent to the issue being decided herein. In connection with her appeal, the Veteran was afforded a VA examination in May 2013. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). That examination report shows that the Veteran was examined and her claims file was reviewed. The examiner conducted blood pressure testing and provided a conclusion with regard to diagnosis that contained a rationale supported by the other evidence in the record. The Board finds that the examination is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In addition, the Board finds that there was compliance with the directives contained in the Board's May 2013 remand. In June 2013, the Veteran was sent a letter and asked to provide information regarding any potentially relevant medical records that are not associated with the claims file; however, she did not respond to that letter. In addition, she was afforded a VA examination on this matter in June 2013 that complied with all of the requirements contained in the remand directives. Because this examination indicated that a diagnosis of hypertension was not warranted, no opinion as to etiology was necessary. Therefore, the Board's remand directives were completed, and the Board may proceed with this adjudication. Stegall v. West, 11 Vet. App. 268 (1998). VA has further assisted the Veteran and her representative throughout the course of this appeal by providing them with a SOC, which informed them of the laws and regulations relevant to the Veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). 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). 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 (which includes 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). In this decision, all blood pressure measurements are noted in units of pressure in millimeters of mercury (mmHg). For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. In addition, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Service connection for pre-hypertension is not warranted when an examiner diagnoses pre-hypertension based on readings not recognized in Diagnostic Code 7101. VA Adjudication Procedures Manual, M21-MR, III.iv.4.E.20.33 (2012). In this case, the Veteran reported in March 2008 and September 2008 statements that high blood pressure readings were recorded in her service treatment records and that she was told by clinicians at every visit that she had high blood pressure. However, she stated that she received no treatment for the disorder. In March 2007 and January 2012 briefs, the Veteran's representative cited five occasions in the service treatment records when the Veteran's blood pressure was recorded as 140 or greater systolic or 90 or greater diastolic. These measurements were all obtained between April 2002 and November 2002 with lower readings both before and after that period of time. The Veteran's service treatment records show that her blood pressure was recorded 46 times on 42 clinical encounters. Blood pressure was recorded as 140 or greater systolic on six occasions and 90 or greater diastolic on three occasions. On one occasion, two other measurements taken at the same time were lower. In all cases, an equal or greater number of measurements taken in the same month were lower. On all but one occasion, the Veteran was being treated for joint strain from athletic exertion or injury, dehydration, an upper respiratory infection, or gastrointestinal distress. On an undated well-woman medical history form, the Veteran did report that she had high blood pressure. However, on an August 2003 discharge physical examination medical history, the Veteran actually denied having a history of high blood pressure. On examination, a military physician noted no heart or vascular system abnormalities. Although blood pressure was not recorded on the discharge examination report, measurements on all nine occasions for the previous four months were less than 140 systolic and 90 diastolic. Moreover, the lowest blood pressure measurement at any time during service was recorded as 119/75 in June 2003, which was only two months before her discharge. The Veteran is competent to report that she was told that she had high blood pressure measurements in service. The Veteran is also credible to the extent that service treatment records documented some measurements that were at or above the VA threshold definition of hypertension. However, the Veteran does not contend, nor do the service treatment records show, an actual diagnosis or treatment for hypertension. Moreover, the measurements over the entire period of active duty and those within several months of discharge were predominantly less than 140 systolic and 90 diastolic. In May 2005, the Veteran underwent a VA general medical examination in connection with other claims. The examiner reviewed the claims file, including the service treatment records, and noted intermittent findings of elevated blood pressure on routine sick call visits in service and cited five occasions in 2002. The examiner also observed that there were many other measurements that were normal. Upon examination, he indicated that there was no hypertension, cardiac disease, venous varicosities, dyspnea, chest pain, syncope, or other symptoms of cardiovascular disease. Blood pressure measurements obtained on the day of the examination were noted as 154/100, 146 /96, 160/110, and 146/108. The physician assessed the Veteran as having borderline hypertension. He did not indicate whether the blood pressure measurements represented the predominant values or were indicative of a chronic disorder that first manifested in service. In May 2013, the Veteran underwent a VA examination in connection with her claim for service connection for hypertension. The examiner concluded that the Veteran had never been diagnosed as having hypertension or isolated systolic hypertension. The Veteran reported having demonstrated high blood pressure, but reported no diagnosis of or treatment for hypertension. The blood pressure readings were 135/88, 126/84, and 119/75. The claims file was reviewed, and the examiner opined that the claimed condition was less likely than not incurred in or caused by service. The examiner detailed the Veteran's previous blood pressure readings. He noted that the readings on the day of the examination were normal, and all readings documented during 2012 outpatient treatment were normal. He concluded that it was less likely than not that the Veteran had hypertension. Instead, her once-yearly high blood pressure was likely from acute illness or stress. A veteran is competent, in many cases, to provide an opinion with regard to medical etiology and diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Veteran has not asserted that she has hypertension. She has merely stated that she has been informed that she had elevated blood pressure readings during and after service. Nevertheless, even if the Veteran had contended that she had hypertension, the Board finds that the medical records, indicating alternatively a diagnosis of borderline hypertension and no diagnosis, are more probative than the Veteran's bare lay assertions. Those conclusions were provided by medical professionals, who have expertise, training, and education that the Veteran is not shown to have. In addition to the lack of evidence showing that hypertension manifested during active duty service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran's military service. There are simply no treatment records documenting any complaints, treatment, or diagnosis of hypertension. Despite requests from the RO, the Veteran has not identified or submitted records of a diagnosis or on-going treatment for hypertension. The Board concludes that service connection for hypertension is not warranted. As previously noted, service connection is not warranted when a diagnosis is based on readings not recognized under Diagnostic Code 7101. Under that diagnostic code, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Although the Veteran has been assessed as having borderline hypertension and has had elevated blood pressure readings on occasion, there is no indication that she has ever been diagnosed with actual hypertension and there is no treatment documented for such a disorder. The May 2013 VA examiner specifically indicated that the high blood pressure readings experienced by the Veteran were likely due to illness or stress. In addition, the May 2005 VA examination findings were consistent with the definition of pre-hypertension, which does not meet the VA criteria for a current hypertension disability. The Board finds that there has been compliance with the requirements of Diagnostic Code 7101. The Veteran was afforded two VA examinations, during which multiple blood pressure readings were conducted. While readings on a third day were not obtained, those manifested during the May 2013 VA examination were normal and all below 90 diastolic and 160 systolic. Therefore, even if the Veteran was afforded a third examination, multiple readings consistent with hypertension would not be shown on three different occasions, such that a diagnosis of hypertension, consistent with VA regulations, could be assigned. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110 (West 2002). Thus, the threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually has the disability for which service connection is sought. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F. 3d 1328 (1997). Based on the foregoing, the preponderance of the evidence is against the claim. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for hypertension is not warranted. ORDER Service connection for hypertension is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs