Citation Nr: 1334731 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 06-12 139 ) 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: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which declined to reopen a claim for service connection for hypertension. In April 2006 the Veteran requested a hearing before the Board, which was scheduled for March 26, 2009. However, the Veteran did not appear or show good cause for his failure to appear and his request for a hearing is deemed withdrawn. In June 2010, the Board remanded the application to reopen the claim for service connection for hypertension for further development. In a February 2012 decision, the Board reopened and remanded the claim for additional development. In January 2013 the Board remanded the claim for further development. FINDING OF FACT Hypertension is not shown in service or within one year of service, and is not shown to be related to an in-service disease or injury, or to a service-connected disability; and above normal blood pressure readings shown on entry to service did not increase in severity during service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1153, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.306, 3.307, 3.309 (2013). DUTIES TO NOTIFY AND ASSIST Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran's August 2005 original claim on appeal was an application to reopen based on new and material evidence. In a February 2012 decision, the Board reopened the claim. In light of the grant of the application to reopen the previously denied claim of service connection for hypertension, further discussion of VCAA compliance as to duty to notify is not necessary as any error committed was rendered harmless by the grant to reopen. The Veteran's service treatment records, VA medical treatment records, and Social Security Administration records have been obtained; VA has requested and received all available records the Veteran has indicated. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA examinations were conducted in June 2012 and May 2013. The Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The presumption is rebutted if clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Id. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If a presumption of aggravation arises due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing by clear and unmistakable evidence "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) and as revised by 71 Fed. Reg. 52744-52747 (final rule revising § 3.310 to conform to the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995) (en banc)). Some chronic diseases, including cardiovascular-renal disease to include hypertension, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which includes hypertension. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertensive vascular disease), Note 1, provides that for, VA purposes, hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 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 (hypertensive vascular disease), Note 1 (2013). Evidence Service treatment records show that at the Veteran's April 1965 entrance examination he reported he had not had any low or high blood pressure problem. On examination the evaluation was normal for heart and vascular system, and blood pressure was 138/64. Service treatment records show that the Veteran was hospitalized for thirteen days from April to May 1967 in treatment for symptoms diagnosed as parotitis and orchitis mumps. During that time his blood pressure was recorded as 126/80. During a November 1967 examination at discharge from service, the Veteran reported he had no low or high blood pressure problems. On examination the evaluation was normal for heart and vascular system, and blood pressure was 126/78. A VA treatment record dated in February 1979 pertaining to complaints of testicular pain and a diagnosed genitourinary condition shows that blood pressure was taken and recorded as 152/96. The report contains no diagnosis referable to hypertension. During an April 1979 VA examination primarily of the Veteran's now service-connected genitourinary condition, blood pressure was 130/80. The report contains no diagnosis referable to hypertension. VA treatment records dated from September 1979 to August 1981 show various complaints including chest pain, headache, chest pressure, and dizziness; with blood pressure recordings ranging from 120 to 164 systolic blood pressure, and ranging from 78 to 100 diastolic pressure. In July 1981 the Veteran was seen for complaints including dizziness, when blood pressure was 164/100, and the assessment was to rule out essential hypertension. During a September 1985 VA examination for hypertension, the examiner summarized the relevant clinical history generally as summarized above. The Veteran also reported that he was treated for hypertension by VA in 1977. The examiner noted the Veteran was not presently on any treatment for hypertension. On examination the heart was normal, and blood pressure was recorded as 130/80, 118/80, and 120/80. The Diagnosis was "hypertension, examined for, not found." During a November 1985 VA examination the Veteran reported having been found to have slightly elevated blood pressure at times and other times normal over several years. He reported he had not had any trouble attributable to hypertension and had not had any treatment. On examination blood pressure was 142/90, 132/88, and 130/88. Heart and lung examination was negative. The diagnosis was "hypertension, history of, normal at this time and not under treatment." When seen by VA in July 2001, the Veteran reported having a past history of variable hypertension for thirty years and that he had not been on medication for that thirty years. He reported having better blood pressure control when his weight was under control. Examination showed his weight to be 194 pounds, and blood pressure was 145/90. The assessment was hypertension. Later VA treatment records in the 2000s show continued treatment and findings diagnosed as hypertension. During a June 2012 VA examination, the examiner diagnosed hypertension. The Veteran reported that he had had hypertension since the early 1970s and was currently on medication for the problem. On examination blood pressure was 202/104; and the Veteran had no other pertinent findings, complications, conditions, signs or symptoms related to the hypertension. The examiner found the Veteran to have severely uncontrolled hypertension, and advised the Veteran to report to the emergency room or treatment provider for management. The examiner opined that the hypertension was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service illness. The examiner explained that on review of the claim file, he found no records showing hypertension or treatment for hypertension during service in the 1960s. The examiner further noted that, in fact, there were records indicating the Veteran did not have hypertension even in the 1980s. During a May 2013 VA examination, the examiner recorded that the Veteran reported a diagnosis of hypertension with the date of diagnosis listed as the 1970s. The Veteran reported that he had had high blood pressure readings in service and was diagnosed with hypertension since the 1970s. He reported that he had been on medications for the last few years. The examiner discussed the clinical history of the Veteran's blood pressure readings in service-138/64 in April 1965, 126/80 in April 1967, and 126/78 at separation examination in November 1967. The examiner stated that the Veteran's blood pressure in November 1985 was indicative of pre-hypertension or stage I hypertension. The examiner cited authority that slightly elevated blood pressure is known as prehypertension; and that prehypertension is a systolic pressure from 120 to 139 mm Hg (millimeters of mercury), or a diastolic pressure from 80 to 89 mm Hg. On examination, associated blood pressure readings were 166/98, 165/100, and 160/98. The examiner noted that the Veteran's blood pressure on service entrance examination was 138/64, which was considered normal at the time but today would be considered prehypertensive; and blood pressure at the separation examination was 126/78, which was considered normal. The examiner opined that the hypertension is not as likely as not due to, caused by, or incurred in service. He explained that the Veteran had prehypertension blood pressure on entrance examination and separation examination. The Veteran did not have a documented diagnosis of hypertension within one year of separation from service. Based on the entrance examination blood pressure reading, which were considered "normal" at that time but would be considered "prehypertension" today, the Veteran's hypertension is more likely than not pre-existing service, and there was no increase in symptoms during service. Thus, there was no exacerbation beyond the normal progression. Analysis Service medical records show no indications of any hypertension symptomatology. There are no complaints, treatment, findings or diagnosis, to show the Veteran had a chronic condition of hypertension constituting a hypertension disability as defined by VA. The VA examiner at the May 2013 VA examination characterized the Veteran's blood pressure readings at the April 1965 entrance examination and the November 1967 examination prior to discharge, as "prehypertension." He explained that prehypertension meant that blood pressure was slightly elevated. Nonetheless, at no time during service was there a diagnosis of hypertension or blood pressure readings predominantly at the level required to meet the definition of hypertension for VA purposes. Nor is there evidence during service of any increase in a "prehypertension" condition. During the examinations in April 1965 and November 1967, the Veteran's blood pressure readings were 138/64 and 126/78, respectively. As these numbers show no significant evidence of an increase in the level of the blood pressure reading at the termination of service, there is no indication of an aggravation of any prehypertension condition, or evidence to predicate an etiological nexus between service and hypertension diagnosed many years later. There is no evidence of hypertension becoming manifest to a degree of ten percent or more within the first year after service. 38 C.F.R. §§ 3.307, 3.309. The Veteran does not claim, and the evidence does not suggest, that his diagnosed hypertension is proximately due to or aggravated by any service-connected disability, specifically, his residuals, parotitis, mumps, with orchitis and residual left testicular atrophy. The first clinical evidence on file of a high blood pressure reading is dated in February 1979, twelve years after service. Assessments of "rule out hypertension" are first shown in 1979. However, during VA examinations in September and November 1985, the examiners assessed that hypertension was not found and that there was a "history of hypertension and findings were presently normal." Even though the examiner at the November 1985 examination recorded a diastolic blood pressure of 90, the evidence does not show that the Veteran's diastolic blood pressure was predominantly 90 mm or greater at that time, which is consistent with the lack of a diagnosis at that time. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertensive vascular disease), Note 1. The first clear diagnosis of hypertension is not shown until 2001 VA treatment records. Blood pressure at that time was recorded as 145/90. Subsequent VA treatment records and examination reports show higher blood pressure levels and diagnoses of hypertension. None of the medical evidence, however, suggests a link between any current hypertension, and any incident of service. Moreover, the VA examiners at the recent VA examinations in June 2012 and May 2013 both concluded that the current hypertension was less likely than not incurred in, due to, or caused by service. Their opinions are based on rationale consistent with the evidence of record. There are no opinions or other competent evidence to the contrary. While the veteran believes that he has hypertension that is related to his military service, he is not shown to be other than a lay person. As such, he has no competence to provide a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The preponderance of the evidence is against the claim for service connection for hypertension; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs