Citation Nr: 1334726 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 05-25 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with alcohol dependence, and/or residuals of a right thigh gunshot wound (GSW), and/or diabetes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1967. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The appeal was remanded for additional development in November 2008, April 2009, and November 2010, and July 2013. At this point, there has been substantial compliance with the remand directives, and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). An October 2013 review of the Veteran's paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In the June and September 2013 Informal Hearing Presentations, the Veteran's service representative set forth motions for revision of a December 1968 rating decision on the basis of clear and unmistakable error (CUE) for alleged failure to assign a 10 percent rating for the service-connected right thigh GSW because it involved two different muscle groups, and CUE in a March 1998 rating decision in failing to assign a separate compensable rating for scarring from that GSW. Although these issues have been raised by the record, they have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Hypertension was not manifested during service or during the first post-service year; and it is not shown or contended to be causally or etiologically related to service. 2. The preponderance of the evidence of record is against a finding that the Veteran's hypertension was caused, aggravated by, or otherwise related to, any service-connected disorder. CONCLUSION OF LAW Hypertension was not incurred in or aggravated during active service, may not be presumed to have been so incurred, and is not secondarily related to a service-connected condition. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The RO informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his service connection claims in no less than 4 letters dated between January 2005 and May 2009, wherein the Veteran was advised of the provisions relating to the VCAA. The Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration (SSA). With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. The Board further observes that the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. The Veteran was provided with notice of the type of evidence necessary to establish a disability rating or effective date as was discussed in the Dingess case in several letters dating from May 2006, forward, after the initial adjudication of the claim in April 2005. Thereafter, the RO adjudicated the claim in Supplemental SOCs issued in 2009, 2010, and 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues on appeal has been obtained. The Veteran's service treatment records (STRs) and post-service treatment records, including private medical reports and VA records, have been obtained and associated with the file. In addition lay statements have also been added to the file along with contentions and arguments provided by the Veteran and his representative. In the September 2013 Brief, the Veteran's representative observed that VA had sent the Veteran a letter inquiring about the Veteran's treatment sources, and did not inform him that he had a year to respond. Significantly, the Veteran did not respond to the letter. The United States Court of Appeals for Veterans Claims (Court) has held that that it is "ultimately the claimant's responsibility" to provide the information necessary to locate and secure non-governmental relevant records; no such information was provided in this case. Hyatt v. Nicholson, 21 Vet. App. 390 (2007). Accordingly, as the Veteran has not provided any information regarding additional treatment sources, there is no duty to assist on the part of VA to attempt to obtain any additional evidence and the argument on this point regarding the time limitation is moot. VA's duty to assist also includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). During the appeal period, VA examinations and opinions dated from 2008 to 2013 were associated with the file, addressing the service connection claims in appellate status, and all of the theories of entitlement. In the September 2013 Brief, the Veteran's representative suggests that the most recent VA medical opinion provided in August 2013 contained "implications" favorable to the Veteran's claim, although the representative acknowledged that the opinion did not specifically state as much. The representative also took issue with a reference in the September 2013 to "current credible medical literature" mentioning that such sources of this evidence could have been explained further. Neither the Veteran nor his representative have specifically maintained that the August 2013 VA examination report and opinions provided therein were inadequate, requiring corrective action. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). Similarly, the Board finds the August 2013 VA examination report and opinions provided therein adequate and on point with respect to the critical issues for resolution in this case. Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). Background The Veteran filed an original service connection claim for hypertension in December 2004. The STRs include an August 1965 enlistment examination report which revealed that clinical evaluation of the lungs, chest and heart was normal and that a blood pressure reading of 104/60 was made. A discharge examination report of August 1967 also reflects that clinical evaluation of the lungs, chest and heart was normal and shows a blood pressure reading of 110/60. The records are entirely negative for any complaints, findings or diagnosis relating to hypertension. The STRs indicate that the Veteran sustained a GSW of the right thigh. Service connection was established for residuals of a right thigh GSW in a December 1968 rating action, effective from October 1967. A VA hospitalization record reflects that a blood pressure reading of 110/70 was made in September 1968. When evaluated by VA in April 1993, the Veteran's blood pressure was recorded as 150/ a value that appears to be 90. VA records dated in 2004 include an entry of July noting that the Veteran had a long history of blood pressure problems and that his blood pressure was still somewhat high. When seen in August a blood pressure reading of 98/60 was made, and assessments included shortness of breath with significant coronary artery disease (CAD) risk factors, and chronic obstructive pulmonary disease (COPD). PTSD was diagnosed upon VA examination of April 2005, and service connection was established for post traumatic stress disorder (PTSD) in an April 2005 rating action, effective from December 2004. A VA hypertension examination was conducted in December 2008 and the claims file was reviewed. It was noted that the Veteran had been treated for hypertension as shown by medical records since 1998, and believed hypertension had been present for a long time. The examiner opined that hypertension was not caused by or the result of PTSD or a GSW of the thigh. It was explained that hypertension had been diagnosed in 1998, and that PTSD was not diagnosed until 2005. The examiner noted that there was no scientific literature supporting a finding that hypertension is caused by PTSD. The examiner did identify literature which indicated that hypertension was of unknown etiology, but that risk factors included: obesity (documented in the Veteran's records since 1997); sex (males greater risk); and age (45 and older), all of which the Veteran had. The examiner also observed that there was no medical literature listing PTSD as a contributing factor to hypertension, and that no credible literature supported a conclusion that a GSW caused hypertension. A VA medical opinion was provided in July 2009. The examiner opined that there was no increase in the severity of the Veteran's hypertension which could not be attributed to the natural progress of the disease. It was noted that the Veteran was taking 2 blood pressure medications and that this was standard practice which did not indicate poor control. The examiner further opined that hypertension was not permanently aggravated by PTSD or a GSW, noting that blood pressure was well controlled and there was no indication of end organ damage. It was also mentioned that there was no clinical correlation or medical literature to the effect that PTSD or a GSW caused hypertension. In August 2010, information from the SSA was added to the file indicating that the Veteran was found to be disabled as of October 1997 due to disorders of the back and osteoarthritis with allied disorders. In a September 2012 statement, the Veteran indicated that he had contacted SSA and it had been verified that his only available evidence was a benefits letter. VA records reflect that blood pressure readings recorded during 2009 and 2010 included: 136/101, 103, 118 (February 2009); 118/64 (May 2010); 128/78 (November 2010). Upon VA examination of the joints conducted in July 2011, a blood pressure reading of 178/90 was made. Upon VA examination for diabetes mellitus conducted in November 2011, the examiner indicated both that it was not at least as likely as not that hypertension was due to diagnosed diabetes, and that it was not at least as likely as not that hypertension was permanently aggravated by diabetes. The report indicated that the onset of diabetes was 2009 or 2010. A long history of hypertension, diagnosed in 1998 was also reported. The examination report indicated that the Veteran had hypertensive retinopathy in each eye, as shown by an August 2011 eye examination. It was also noted that the Veteran drank two 12-cup pots of coffee each day. Service connection was established for diabetes in a September 2012 rating action, effective from October 2011. In a brief presented in June 2013, the Veteran's representative mentioned that some evidence of a relationship between hypertension and PTSD had been found as follows: "See Behavioral Medicine, Winter 2009." It was explained that information to the effect that, clinical literature increasingly indicates that cardiovascular risk factors and cardiovascular disease are more common among individuals with PTSD, could be found in this source. A VA examination was conducted in August 2013 and the claims folder was reviewed. The examiner opined that hypertension was not caused or aggravated by PTSD with alcohol dependence, residuals of a right thigh GSW, or by diabetes, either individually or in combination thereof. The examiner noted that the Veteran was diagnosed with: hypertension 1998, 31 years after discharge from the military; PTSD in 2005, 38 years after discharge; and with diabetes in 2009, 42 years after discharge. It was explained that current credible medical literature evidences no medical nexus to substantiate a causal etiology or aggravation between hypertension and PTSD with alcohol dependence, right thigh GSW residuals and/or diabetes mellitus type II. It was noted that current credible medical literature did support that when there is cardiovascular disease present prior to the onset of hypertension, then hypertension may be caused by PTSD. The examiner observes that this Veteran had no history of cardiovascular disease. The VA examiner further mentioned that current credible medical literature evidences that hypertension has an unknown etiology, but that risk factors included obesity, gender (males have a greater risk than females), age (greater than age 45). It was recorded that the Veteran had significant risk factors to include: obesity, male gender, age (66), and tobacco abuse. The examiner further stated that there was no credible medical literature substantiating any causal etiology between GSW residuals to the right thigh and hypertension. It was noted that the Veteran reported that he has been drinking for the past 40 years; currently drinking 15 beers per week; and that he has smoked 2-3 packs per day for over 30 years. The examiner referenced VA medical records from Veteran's primary care provider, dated in May 2013 documenting an assessment of hypertension, blood pressure adequately controlled, no medication changes. COPD: smoking cessation encouraged. The record also mentioned alcohol abuse: patient no longer drinks daily and does stay under 14 beers a week; and obesity: patient has gained 5 pounds, weight loss recommended. Analysis The Veteran maintains that service connection is warranted for hypertension, secondary to one or more of his service-connected conditions, by virtue of causation or aggravation. He has not contended and the evidence does not establish or even suggest that his hypertension had its onset during service or within the first post-service year, or that it is otherwise etiologically related to his period of service. Where neither the Veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. Therefore, the theory of direct service connection will be only briefly addressed herein, for the sake of completeness. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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 injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection shall be granted to a Veteran if the Veteran served 90 days or more during a war period or after December 31, 1946 or had peacetime service on or after January 1, 1947, and conditions including and hypertension, although not otherwise established as incurred in or aggravated by service, are manifested to a compensable degree within one year following the requisite service. 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Service connection on a secondary basis requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The medical criteria relevant to rendering a diagnosis of hypertension for VA purposes is set out in VA Training Letter 00-07 (July 17, 2000), which states that hypertension is present if the diastolic blood pressure is 90 mm Hg or more or the systolic pressure is 140 mm Hg or more, or if both are present. In isolated systolic hypertension, the systolic pressure is 140 mm Hg or more, but the diastolic pressure is less than 90 mm Hg. Indisputably, the record contains medical evidence of currently diagnosed hypertension. The remaining question is whether or not currently manifested hypertension was incurred during or as a result of the Veteran's active military service, presumptively or otherwise, or is secondarily related to a service-connected disorder by virtue of causation or aggravation. As an initial matter, the Board observes that in light of the Veteran's receipt of awards indicative of combat, including a Purple Heart, the provisions of 38 U.S.C.A. § 1154(b) are potentially applicable in this case, which state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. However, as a practical matter, the provisions of 38 U.S.C.A. § 1154(b) are of little assistance in this case. With respect to service incurrence, as discussed below, hypertension was not diagnosed during service or for decades thereafter; nor does the Veteran even maintain that symptoms of hypertension first manifested in service. Consistent with the above discussion, there is no indication of in-service incurrence of hypertension in this case. The STRs are silent for any indication of treatment for hypertension, clinical diagnoses of hypertension, or other clinical indications such as high blood pressure. At the time of his separation examination, a normal blood pressure reading of 110/60 was made and the lungs, chest, and heart were described as normal. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). The fact that the STRs and separation examination report failed to include a diagnosis or reference to hypertension weighs heavily against the claim based on the theory of direct service incurrence, such that the claim may be denied on the basis of lack of evidence of service incurrence. The record also fails to show that hypertension manifested to a degree of 10 percent by October 1968 (within the first year following his active duty service discharge, in October 1967), nor does the Veteran specifically maintain that it manifested during this time frame. A chronic disease need not be diagnosed during the presumptive period under 38 C.F.R. § 3.307(c), but if not, there must then be shown by acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). No such evidence has been presented in this case. The file contains a normal blood pressure reading of 110/70, made in September 1968, during the first post-service year, and evidence dated during that time period is otherwise negative for any indications or diagnosis of hypertension or high blood pressure. The earliest indications of any high blood pressure readings are not shown by the record until 1993. Accordingly, service connection on a presumptive basis is not established under 38 C.F.R. §§ 3.307, 3.309. The Veteran maintains that hypertension is secondary, by virtue of causation or aggravation, to one of more service-connected conditions, consisting of: PTSD with alcohol dependence; residuals of a right thigh GSW; and diabetes. In this case, the file contains no less than 4 VA opinions indicating that hypertension was less likely than not caused or aggravated by a service-connected condition. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The reasons supporting those opinions are detailed above and reflect review of the history of both the claimed condition, the service-connected conditions, and the treatment and progression of both. Therefore, Board finds no adequate basis to reject any of the competent medical opinions provided by VA for the record based on a lack of credibility or probative value, and finds the opinions to be of significant probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). ). In addition, the Veteran has not provided any competent evidence to rebut these opinions or otherwise diminish their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). With respect to medical treatise evidence identified by the Veteran's representative in the June 2013 Brief, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). Here, the medical information does not specifically pertain to the Veteran's case, it is not accompanied by any supporting medical opinion pertinent to his individual case, and the clinical evidence and medical opinions on record relating to the Veteran's specific case are unfavorable. Accordingly, the medical treatise evidence is of no probative value in this case. To the extent that the Veteran himself asserts he suffers from a hypertension as a result of one or more service-connected conditions, the Board does not question the Veteran's sincerity in his belief that this condition is etiologically related to such a cause. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, providing an opinion as to the etiology of hypertension falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Accordingly, the Veteran's opinions in this regard are not competent, are therefore are of no probative value in this case. The Board finds that the preponderance of the evidence is against the Veteran's service connection claim for hypertension. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs