Citation Nr: 1335106 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 13-08 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran's service treatment records do not show hypertension for VA purposes. 2. Hypertension is currently diagnosed. 3. 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. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A November 2010 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). No VA examination was conducted with respect to the Veteran's claim for service connection for hypertension as there were no questions of medical fact presented by the record requiring resolution because there is no competent indication that the Veteran's hypertension is related to or had its onset in service. 38 C.F.R. § 3.159. Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms. 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (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), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Under VA regulations, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters of mercury (mm/Hg) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm/Hg or greater with a diastolic blood pressure of less than 90 mm/Hg. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2013). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. The Veteran's service treatment records do not show hypertension for VA purposes during service or at service separation. The diastolic blood pressure readings ranged from a low of 70 at the Veteran's June 1992 service separation examination, and a high of 84 at a May 1986 sick call visit. Similarly, the systolic blood pressure readings ranged from a low of 120 at the Veteran's June 1992 service separation examination, and a high of 144 at a May 1986 sick call visit. At no time during service was it documented that diastolic blood pressure was predominantly 90 mm/Hg or greater, or that systolic blood pressure was predominantly 160 mm/Hg or greater with diastolic blood pressure being less than 90 mm/Hg. Similarly, the evidence of record does not establish that the Veteran had hypertension that manifested to a compensable degree within the one-year presumptive period; a July 1992 private treatment record noted a blood pressure reading of 124/78. To the extent that the Veteran asserted in his October 2011 notice of disagreement that his service department's medical corps should have diagnosed the in-service blood pressure readings as hypertension using the American Heart Association standards, or that one or more of the elevated readings noted in service constitutes "pre-hypertension," VA's regulatory definition of hypertension does not include, reflect, or otherwise accept outside definitions. 38 C.F.R. § 4.104. The documented readings of record dated during service or within the one-year post-service period do not meet those criteria. Thirteen years after service separation, the Veteran's blood pressure reading was 160/100 mm/Hg at the May 2005 VA respiratory examination. To that end, a June 2005 VA outpatient treatment record noted that hypertension had been diagnosed "last month;" records dated from that time through April 2008 all reflect elevated blood pressure readings, some of which meet VA's definition of hypertension defined above, as well as prescriptions for blood pressure medication (Lisinopril). Specifically, systolic readings ranged from a low of 128 mm/Hg in February 2008 to a high of 170 mm/Hg in November 2005; diastolic readings ranged from a low of 72 mm/Hg in June 2006 to a high of 101 mm/Hg in June 2007. While the post-service evidence discussed above, dated beginning in May 2005, reflects a current diagnosis of hypertension, the evidence does not relate the Veteran's hypertension to his military service. No medical opinion is of record relating the hypertension to his military service or any incident therein. To the extent that the Veteran asserted in his March 2013 substantive appea l that his blood pressure readings during military service were predominantly in the "pre-hypertension" range, as defined by the American Heart Association, and thus that he had blood pressure readings that qualified as hypertension for VA purposes in service, the Board finds that he is not competent to make such a determination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the criteria for service connection for hypertension are not met. The Veteran's October 2011 notice of disagreement also appears to raise the issue of negligence or malpractice on the part of his service department's medical corps in not diagnosing hypertension, suggesting or implementing lifestyle changes after elevated blood pressure readings were recorded, or otherwise treating the elevated readings shown in service. The Board, however, is bound by the medical evidence and is precluded from substituting its own medical judgment. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection for hypertension is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs