Citation Nr: 1334722 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-12 382 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to March 1969. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an April 2008 rating decision, by the St. Louis, Missouri, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for hypertension. The Veteran perfected a timely appeal to that decision. In February 2011, the Board remanded the case for additional evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in June 2012. In June 2013, the Board again remanded the case for further evidentiary development. Following the requested development, an SSOC was issued in August 2013. Given the actions taken, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). An Informal Hearing Presentation, prepared by the representative, dated in October 2013, is associated with the electronic file as maintained as part of the Virtual VA system; all electronic files have been reviewed in connection with the appeal. FINDING OF FACT Hypertension did not have its clinical onset in service and is not otherwise related to active duty; it was not exhibited within the first post service year. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate 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); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in January 2008 from the RO to the Veteran, which was issued prior to the RO decision in April 2008. An additional letter was issued in March 2011. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. II. Factual background. The record indicates that the Veteran entered active duty in September 1968. During a pre-induction examination, conducted in May 1968, the Veteran reported a history of weakness and dizziness with sudden change of position. Examination revealed a blood pressure reading of 122/80. The service treatment records (STRs) indicate that the Veteran was admitted to a hospital on September 11, 1968 with a history of severe chest pain and a feeling of pins and needles in the anterior left chest. The Veteran gave a 3 year history of such pain and no previous diagnosis had been made. Physical examination revealed a blood pressure reading of 150/76. The examination was reportedly within normal limits, with the exception of possible Grade I/VI, mid-systolic murmur at third and fourth intercostal space, which was felt to be within normal limits. It was noted that EKGs were normal. The pertinent diagnoses were chest pain, unknown etiology and probable psychophysiological reaction. On September 17, 1968, the Veteran underwent another EKG; at that time, his blood pressure reading was 148/102. The assessment was no change from previous EKGs, but he still had possible pericarditis. In January 1969, the Veteran admitted to a Naval Hospital for evaluation of drug withdrawal syndrome. Following an evaluation, he was diagnosed with emotionally unstable personality, and anxiety reaction, acute, resolved. The Veteran's claim for service connection for hypertension (VA Form 21-526) was received in November 2007. Submitted in support of the claim were treatment reports from Barnes Jewish Hospital dated from October 2005 to December 2007. These records reflect diagnoses of hypertension; they also show that the Veteran received clinical attention and treatment for hypertension. The Veteran was afforded a VA examination in March 2011. The Veteran stated that he was diagnosed with hypertension in 1968. The examiner noted that the service treatment records show that the Veteran sought treatment for severe chest pain in September 1968, at which time his examination was essentially normal with the exception of a possible mid-systolic murmur, which was thought to be a congenital abnormality. The Veteran was diagnosed with chest pain of an unknown etiology and probable psychophysiological reaction. The heart had a regular rate and rhythm with no murmur and no gallop. Blood pressure readings were: 190/91, 185/98, and 167/100. There was no evidence of congestive heart failure, pulmonary hypertension, or abnormal breath sounds. The examiner reported a diagnosis of hypertension. The examiner opined that hypertension was not caused by or the result of elevated blood pressure without a diagnosis of hypertension in service. He added that, at present, the Veteran did not have any diagnosis of complications of hypertensive disease. The examiner explained that the Veteran's elevated blood pressure reading in service did not meet the criteria for hypertension, which appears to have developed late. The examiner further noted that the Veteran had a family history of hypertension, a long history of cocaine abuse, heroin addiction during service, longstanding tobacco abuse, as well as hyperthyroidism requiring RAI ablation. In short, the examiner concluded that the Veteran had multiple non-service related issues which predisposed him to development of hypertension. In an addendum to the March 2011 VA examination, dated in July 2013, the VA examiner opined that it is less likely than not that the Veteran's hypertension had its clinical onset during active service or is related to any in-service disease, event or injury. The examiner explained that the Veteran did not meet the criteria for hypertension in service, although he developed this condition post service. The examiner noted that the Veteran does have a positive family history of hypertension, and subsequent to service he had issues with tobacco, alcohol dependence and cocaine addiction, all of which are associated with hypertension. In August 2013, the Veteran's claims folder was referred to a VA examiner for review and opinion regarding the nature and etiology of his diagnosed hypertension. The examiner opined that hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's blood pressure on induction was 122/80. He noted that on September 11, 1968, the Veteran had blood pressures of 150/76 and 148/68 on a visit to a medical clinic for noncardiac chest pain eventually diagnosed as anxiety related. On September 17, 1968, the Veteran had a blood pressure reading of 148/102; diagnosis was still anxiety and he was returned to full duty on September 18, 1968. However, it was later discovered that the Veteran had an issue with illicit drug use in service and he was admitted for potential drug withdrawal syndrome on January 22, 1969. On that occasion, he gave a history of having taken heroin three weeks previously. He also gave a history of smoking 2-3 packs per day and frequently drank to excess. The Veteran was diagnosed with acute anxiety, precipitated by inability to conform to military structure, particularly duty involved aboard ship, and manifestation of an underlying character disturbance. It was noted that the Veteran is service-connected for dysthymic disorder. It was subsequently determined that the Veteran would not be able to usefully adapt to further military service, and he was therefore separated from service. The examiner observed that the Veteran was not placed on antihypertensive medications during service, and his elevated blood pressures appear to have been due to anxiety and illicit drug use, not to essential hypertension. The examiner noted that the Veteran was first placed on antihypertensive medications in 2005 in the context of hyperthyroidism due to diffuse toxic goiter. He subsequently developed frank hypertension and is currently on HCTZ and amlodipine for his condition. He denied sequelae of hypertension, specifically denying renal issues. III. Legal Analysis. Service connection may be granted for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110, 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service 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 for a chronic disease such as cardiovascular-renal disease, including hypertension, may be granted if manifest to a compensable degree within one year of separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, 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) (2013). By regulation, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 note (1) (2013). Also, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. The regulations show that there is a difference between being diagnosed with hypertension and having hypertension that is compensable for VA purposes. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). As noted above, 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 note (1). The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Id. After review of the evidentiary record, the Board finds that service connection for hypertension is not warranted. Competent evidence showing current hypertension has been submitted. Accordingly, the remaining question is whether the currently shown hypertension is related to the Veteran's active military service. Review of the STRs reveals that the Veteran had some borderline elevated blood pressure readings and a (elevated) diastolic blood pressure of 102mm. in September 1968. However, the January 1969 Medical Board examination did not indicate that he had hypertension. The Veteran was not diagnosed with hypertension or prescribed blood pressure medication during service. He did not exhibit multiple diastolic blood pressure readings of predominantly 90mm. or greater over a period of two or three days. There is no indication in the record that hypertension was manifest within one year of the Veteran's release from active service. Rather, the first diagnosis of hypertension is in October 2005, more than 36 years following the Veteran's discharge from service, well outside of the period for presumptive service connection for hypertension. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The gap of time of between the service and the first medical evidence of a diagnosis of hypertension is, in itself, significant and it weighs against the Veteran's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered in service connection claims). The Veteran has claimed that high blood pressure began in service and service treatment records support his claim for at least one such reading. However, the Veteran is not competent to claim that one or more high blood pressure readings was diagnostic of hypertension. He has not specifically claimed continuous high blood pressure since service, but to the extent any statement could be construed that he does, it would not be credible. He has not claimed that hypertension was diagnosed prior to 2005, when medication was first prescribed and the Board does not find it likely that he had persistent high blood pressure for more than 30 years without receiving treatment. There is no competent evidence relating the hypertension to service. The 2013 examiner explained that the Veteran's elevated blood pressure reading in service did not meet the criteria for hypertension, which appears to have developed late. The examiner further noted that the Veteran had a family history of hypertension, a long history of cocaine abuse, heroin addiction during service, longstanding tobacco abuse, as well as hyperthyroidism requiring treatment. In short, the examiner concluded that the Veteran had multiple non-service related issues which predisposed him to development of hypertension. Each VA examiner, including the 2013 examiner, opined that it is less likely than not that the Veteran's hypertension had its clinical onset during active service or is related to any in-service disease, event or injury. Put simply, the evidence does not establish that the Veteran had hypertension during active service or within one year of separation from active service, or that his hypertension is otherwise related to active service. Accordingly, hypertension was not incurred in or aggravated by service, nor may it be presumed to have so been incurred. In summary, the evidence points to a post-service onset of the Veteran's hypertension. There is a remarkable lack of evidence of pathology or treatment in proximity to service or within years of separation. The Board finds the negative and silent record to be far more probative than the Veteran's remote, unsupported assertions. Rather, the probative evidence establishes that the post-service diagnosis of hypertension is not related to service. The Board has considered the record and the Veteran's assertions. However, the most probative evidence consists of treatment records demonstrating onset after service discharge and the negative medical opinion by the examiner who reviewed the file. Absent competent evidence relating this disability to service, the claim of entitlement to service connection for hypertension must be denied. For the reasons above, the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs