Citation Nr: 1334038 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-17 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service-connection for hypertension. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran had active service from September 1970 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT The evidence of record reflects a current diagnosis of hypertension as well as frequent and persistent elevated blood pressure readings dating back to the Veteran's active duty. CONCLUSION OF LAW The criteria for service connection, for hypertension, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7101 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for hypertension which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Legal criteria Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). 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) (2013). 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 layperson. 38 C.F.R. § 3.159(a)(2) (2013). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2013). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a) (2013). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) (2013) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a) (2013). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is listed among diseases recognized by VA as chronic in 38 C.F.R. § 3.309(a) (2013). For Veterans 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 they become manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Under Note (1) of 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013), hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Note (1) defines "hypertension", for VA purposes, as diastolic blood pressure that is predominantly 90 millimeters or greater. "Isolated systolic hypertension" is defined, for VA purposes, as systolic blood pressure that is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. In a blood pressure reading, "systolic blood pressure" is represented as the top value, whereas "diastolic blood pressure" is expressed as the bottom value (for example, in a blood pressure reading of 120/80, the value of 120 represents the systolic blood pressure, while the value of 80 reflects the diastolic blood pressure). A 10 percent evaluation for hypertension requires diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more; or if a claimant has a history of diastolic pressure of predominantly 100 or more and requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013). Analysis The Veteran claims that his current diagnosis of hypertension is related to his period of active service. The Veteran's service treatment records are negative for an official diagnosis of hypertension. However, the Veteran's service treatment records show that the Veteran had elevated blood pressure readings of 150/90 mmHg in July 1974; 160/104 mmHg, 150/84 mmHg, and 146/104 mmHg at his separation examination in August 1978; and 140/90 mmHg at a follow-up hypertension screening in September 1978. The service treatment record from the Veteran's September 1978 hypertension screening noted that the Veteran had mild elevation of blood pressure, and he was advised to return to the clinic for a recheck. The Veteran separated from service shortly thereafter, and his service treatment records contained no further notations. A review of the private medical reports of record shows that, in April and June 1987, emergency room treatment records noted that the Veteran took high blood pressure medication. The first medically documented diagnosis of hypertension was in a private treatment record from Dr. J.A., dated August 1996. In the record, Dr. J.A. noted that the Veteran had hypertension, not well controlled, and that the Veteran was continued on his prescription for Cardizem and prescribed Lozol. The Veteran was provided a VA examination in March 2010. The examiner noted that the Veteran reported an in-service boiler "explosion" in September 1978, which the Veteran asserted was the cause of his hypertension. The Veteran reported that he was standing fifteen feet away from the boiler when 1200 pounds of steam exploded and bounced him off the main condenser and into the wall. The Veteran also reported that he started blood pressure medication immediately upon discharge from the military, in early 1979. The examiner noted a September 1978 blood pressure reading of 140/90 mmHg. The VA examiner opined that it was more likely than not that his condition was not related to the Veteran's active service. In support of this opinion, the examiner noted that there was no documented treatment for elevated blood pressure or hypertension in service, and that there was only one more in-service blood pressure reading of record. The examiner opined that there were multiple other reasons, of a more recent nature, that had potentially contributed to the Veteran's hypertension. After the VA examination and opinion, the Veteran's physician, Dr. J.A., submitted an April 2011 statement, in which she noted that she had been the Veteran's primary care physician since 1979. She also stated that the Veteran had hypertension at that time and that he had been treated with anti-hypertensives ever since. The Board notes that Dr. J.A. statement did not note the month that she began treating the Veteran. A VA addendum opinion was obtained in April 2011 after Dr. J.A.'s statement and additional records were associated with the claim file. After reviewing the additional evidence, the VA examiner noted that in an April 2011 letter Dr. J.A., the Veteran's primary care physician, stated that she saw the Veteran in 1979 and started him on high blood pressure medication. The examiner noted that this information was not verified in the examiner's review of the Veteran's emergency room records. The examiner also noted that while the Veteran's blood pressure was borderline at discharge, the criteria for diagnosing hypertension requires three separate readings, under non-stressful circumstances over three separate days, with readings greater than 140/90 mmHg. The examiner noted that while the Veteran had elevated blood pressure readings, the readings did not meet the criteria because they were at a time of pain, which would elevate the Veteran's blood pressure. The examiner also noted that he was unable to verify whether the Veteran was on high blood pressure medication after discharge. The examiner noted that the 1986 emergency room records documented no medication and no allergies to blood pressure medication which might indicate prior use of the medication. The examiner concluded that there was no evidence of high blood pressure treatment until after 1986 and therefore no evidence of high blood pressure in service or within one year of discharge. The Board acknowledges that the VA opinion is negative and does not support the claim. While the Board may not reject a medical opinion based on its own unsubstantiated medical conclusions, the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). After careful consideration the Board finds that the March 2010 VA opinion and April 2011 VA addendum opinion are of diminished probative value. The examiner based his opinion on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that if the examiner relies on an inaccurate fact, then the opinion has little or no probative value). The examiner stated that the elevated blood pressure readings while in service did not meet the criteria for hypertension because they were at a time of pain. The Board acknowledges that the July 1974 blood pressure reading was taken at a time when the Veteran was complaining of pain. However, there is nothing indicating that the Veteran was in pain at the August 1978 separation examination or the September 1978 hypertension screening. Further, the examiner appeared to entirely discount Dr. J.A.'s statement solely because the examiner believed it was not corroborated in his review of the Veteran's April and May 1986 emergency room records. Based on the foregoing reasons, the Board attaches little, if any, probative value to the VA examiner's opinions. After reviewing the record, the Board finds that the Veteran's elevated blood pressure readings in service, in combination with Dr. J.A.'s statement, establishes that the Veteran had hypertension, meeting the criteria for a 10 percent rating, during the presumptive year following his separation from active service. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013). The Veteran separated from service in September 1978; as such, the Board acknowledges that Dr. J.A.'s initial treatment may have been more than a year after the Veteran's separation from service. However, the Board will resolve this doubt in the Veteran's favor and find that the Veteran's hypertension required continuous medication within one year of his separation from service. The Board finds that Dr. J.A.'s statement is the most probative evidence concerning when the Veteran's hypertension manifested and required continuous medication. The Board acknowledges that Dr. J.A.'s statement was not corroborated by any of the evidence of record. However, the absence of evidence may not be considered as substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). Accordingly, the lack of corroborating records does not diminish the probative value of Dr. J.A.'s statement. Therefore, the statement is given significant weight. Accordingly, resolving the benefit of the doubt in favor of the Veteran, service connection for hypertension is warranted. 38 U.S.C.A. §§ 1154(a), 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303(a) (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs