Citation Nr: 1335016 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-08 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected post traumatic stress disorder/anxiety reaction with major depression. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to August 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In December 2012, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing of record. In April 2013, the Board referred the matter for a VHA expert opinion. The requested opinion was received in June 2013, and in July 2013, the Board informed the Veteran that it had requested a medical opinion in conjunction with the adjudication of his appeal; provided him a copy of that opinion; and advised that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. Although to date Veteran has not responded, in September 2013 his representative, the Veterans of Foreign Wars, acknowledged the VHA specialist's opinion and advised that there was no further argument. Accordingly, the Board will proceed with the consideration of this case. FINDINGS OF FACT 1. Service connection is in effect for anxiety reaction, PTSD with major depression (psychiatric disability), which is evaluated as 70 percent disabling; psychiatric disability is the Veteran's sole service-connected disability, and he has been granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) due to that condition. 2. The preponderance of the evidence shows that the Veteran's hypertension was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his service-connected psychiatric disability or his in-service Agent Orange exposure. CONCLUSION OF LAW Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) Under 38 U.S.C.A. § 5103(a), 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. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements were accomplished in letters dated in August 2007, March 2009, and March 2010. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The Veteran was apprised of the information and evidence needed to substantiate his claim of service connection (including the information and evidence to be submitted by him and the information and evidence to be obtained by VA); of how disability evaluations and effective dates are assigned; and of the type of evidence that impacts those determinations. He was also apprised of the criteria for service connection on a secondary basis. As regards VA's duty to assist, evidence necessary for resolution of this appeal has been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records. VA and private treatment records have also been associated with the claims file. Additionally, in April 2013 the Board referred the matter for an opinion from a VHA expert, which was returned in June 2013. The Board has reviewed the ensuing report and finds it to be adequate. See, e.g., Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (providing, basically, that a medical examination and opinion is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'). In addition, in December 2012 the Veteran testified before the undersigned Veterans Law Judge. During that hearing the Veterans Law Judge and the Veteran's representative explained the issue and asked the Veteran questions to ascertain the nature of any in-service events and symptoms. The Veterans Law Judge and the Veteran's representative also asked questions to draw out the current nature of the Veteran's complaints, and the hearing focused on the elements necessary to substantiate the Veteran's claim. The Veteran has not suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claim was identified by the Veteran and has been obtained. Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). In conclusion, the Board finds that the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Accordingly, any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran; and does not prohibit consideration of this matter on the merits. II. Service Connection In August 1967 the Veteran separated from active duty service, and in June 2007 he filed his claim for service connection for hypertension, which he asserts is secondary to herbicide exposure or to his service-connected psychiatric disability. 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). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hypertension if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (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. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. C.F.R. § 3.310(a). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; to condition that service connection not be awarded based on an aggravation unless a pre-aggravation baseline level of disability is first established. In addition, if a veteran was exposed to Agent Orange during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). 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 his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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 v. Nicholson, 492 F.3d 1372, 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), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. (millimeters of mercury) 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. 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, Code 7101, Note (1). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analyses The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As for the merits of the claim, service treatment records contain no record of any complaints, diagnosis, or treatment for high blood pressure, much less confirmed hypertension, during active duty service. In fact, there is no allegation or evidence, whatsoever, of hypertension until the year 1997; some 30 years after the Veteran's separation from active duty service. Service connection on a direct basis under 38 C.F.R. § 3.303(a), or under the presumptive provisions of 38 C.F.R. § 3.309(a), is therefore not warranted. As for service connection for a disability first diagnosed after service (38 C.F.R. § 3.303(d)), on VA general medical examination in June 2007 the Veteran reported that he had had hypertension for at least 10 years; and during his December 2012 Board hearing he reiterated that he was first diagnosed with hypertension in 1997. VA and private medical records dated from September 2003 to June 2010 show ongoing treatment for hypertension with some adjustments to the Veteran's medication regimen, but relatively good overall control. An initial diagnosis of hypertension some 30 years after service militates against service connection under 38 C.F.R. § 3.303(d). See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (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). At this point the weight of the evidence is decidedly against the claim. As for service connection for hypertension due to Agent Orange exposure, although his exposure to herbicides/Agent Orange is conceded, hypertension is not among the disorders listed at 38 C.F.R. § 3.309(e), so service connection under the presumptive provisions of 38 C.F.R. § 3.309(e) is not warranted. To the extent that the Veteran himself suggests that his hypertension may be related to his exposure to Agent Orange some 30 years earlier, there is no indication that he is qualified through specialized education, training, or experience to offer a medical diagnosis or an opinion on medical causation; nor has he offered any medical evidence that hypertension is actually caused by exposure to Agent Orange. See Combee v. Brown, 34 F.3d 1039, 1042 (1994) (for a disease not presumed under the regulation to be caused by herbicide exposure may still seek to establish service connection by offering medical evidence that his disease was actually caused by military service, including herbicide exposure). Indeed, no competent evidence of record supports such a theory, and it is in fact flatly refuted by a VHA expert/professor of Medicine at Harvard Medical School, who categorically refuted the notion that the Veteran's hypertension was either incurred in service or related to Agent Orange exposure. According to this physician, while some studies point to a possible statistical link or plausible biological means by which exposure to the chemicals of concern could result in a particular health effect such as hypertension, contradictory results front other studies, along with biases and other confounding factors, limit the certainty of the evidence. He added that most of the studies were limited by serious methodological flaws, such as failure to control for known risk factors for hypertension. He also pointed out that most studies that found a positive association between herbicide exposure and hypertension did not reach statistical significance. The Board finds this expert opinion evidence, which was provided after careful review of the claims file; in-depth discussion of the medical evidence of record; and in-depth discussion of scientific studies on the matter; which included a detailed rationale in support of the conclusions reached; and which is not contradicted by any other medical opinion evidence, to be highly probative evidence against the Veteran's claim. Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). Finally, as for service connection under the theory that the Veteran's hypertension is caused or aggravated by his service-connected psychiatric disability, the only evidence in support of the Veteran's contention is his citation to a few articles, and this is not adequate. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (providing that while a medical article or treatise can provide support for a claim of service connection, it must be bolstered by an opinion of a medical professional and relate to the specific facts of the case as opposed to a discussion of generic relationships). Moreover, according to the June 2013 VHA expert, the Veteran's hypertension was not at least as likely as not caused by or aggravated by his service-connected psychiatric disability. He explained as follows: [While] the [V]eteran did have an elevation of his blood pressure during his psychiatric examination in December1969; this correlation is not consistently seen in his record. There are instances when the [V]eteran reports exacerbation of depression or PTSD symptoms, yet he has normal or near normal blood pressure (August 1967, March 2010). There are also instances where he is rather hypertensive but does not report specific psychiatric symptoms (June 2005.). Rather, the [V]eteran's fluctuating severity of disease is consistent with the natural history of essential hypertension. I was not able to find any statements by the veteran's treating doctors that the [V]eteran's blood pressure was affected by his psychiatric condition. The VHA expert added that he had reviewed the articles cited by the [Veteran], with specific reference to whether they support a causative link between PTSD and hypertension, but was unpersuaded. He noted that while some studies have identified an association between PTSD and cardiovascular morbidity (including hypertension), the studies were hampered by poor methodology, such as poor control of confounders like smoking and/or alcohol use, thus undermining the conclusions reached by the researchers. He expounded as follows: It is part of the natural history of this disease to fluctuate, and often to worsen over time. Many factors can transiently affect blood pressure, including pain, anxiety, and withdrawal from alcohol or sedatives. Other factors are known to increase blood pressure more chronically, including alcohol abuse, obesity, lack of physical exercise, and certain medications including NSAIDs. The [Veteran's] chart does not reveal a pattern of hypertension that is aggravated chronically by the [Veteran]'s service connected disability. There is no consistent correlation discernible between the [Veteran]'s blood pressure and his mood disorder symptoms. The Board finds this expert opinion evidence, which again was provided after careful review of the claims file, in-depth discussion of the facts in this Veteran's case, and in-depth discussion of scientific studies on the matter; which included a detailed rationale in support of the conclusions reached; and which is not contradicted by any other medical opinion evidence, to be highly probative evidence against the Veteran's claim. To the extent that the Veteran himself suggests that there may be a causal relationship between his relatively late-onset hypertension and his in-service exposure to herbicides and/or his service-connected psychiatric disability, this is a medical question that is complex in nature. See, e.g., Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (providing that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). See also Barr v. Nicholson, 21 Vet. App. 303, 307 (noting that lay persons are not competent to opine as to medical etiology or render medical opinions). And it is not alleged or shown that the Veteran, as a lay person is qualified through specialized education, training, or experience to offer a medical diagnosis or an opinion on medical causation. Accordingly, the Veteran's contention that his hypertension may be related to his experiences in-service or his service-connected psychiatric disability is little more than conjecture and is accorded no probative weight. The weight of the evidence is consequently against the claim, as there is no evidence of hypertension until approximately 30 years after service, and no competent probative evidence that links the Veteran's hypertension to any incident of service, or to a service-connected disability. The appeal for service connection must therefore be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs