Citation Nr: 1335224 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-25 085 ) 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: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served in the Army Reserve from August 1970 to November 2002, with active duty service from December 1970 to April 1971 and from November 1990 to December 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in relevant part, denied service connection for depression and for hypertension. The issue on appeal was previously remanded by the Board in March 2013 for further evidentiary development of requesting service personnel records, outstanding VA treatment records, and to obtain a VA examination to assist in determining the etiology of the Veteran's hypertension. This was accomplished, and the claim was readjudicated in a July 2013 supplemental statement of the case. For this reason, the Board concludes that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran did not sustain a cardiovascular injury or disease during service, and symptoms of hypertension were not chronic during active duty service from November 1990 to December 1991. 2. Symptoms of hypertension did not manifest within one year of separation from active duty service and were not continuous after release from active duty in December 1991. 3. Currently diagnosed hypertension was not incurred in and is not etiologically related to active duty service from November 1990 to December 1991. 4. Subsequent to its diagnosis in May 2000, hypertension did not worsen beyond its normal progression during periods of active duty for training (ACDUTRA) from: May 22, 2000 to May 24, 2000; June 25, 2000 to June 29, 2000; August 10, 2000 to August 28, 2000; October 30, 2000 to November 3, 2000; November 18, 2000 to November 19, 2000; March 11, 2001 to March 16, 2001; March 24, 2001 to March 25, 2001; May 16, 2001 to May 20, 2001; June 2, 2001 to June 3, 2001; June 9, 2001; August 13, 2001 to August 17, 2001; January 12, 2002 to January 13, 2002; March 23, 2002 to March 24, 2002; May 5, 2002 to May 7, 2002; May 18, 2002 to May 19, 2002; and October 26, 2002 to October 27, 2002. CONCLUSION OF LAW The criteria for hypertension have not been met for any period of service. 38 U.S.C.A. §§ 101, 1101, 1110, 1111, 1112, 1113, 1131, 5103, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In letters dated May 2006 and January 2011, the Veteran was informed of the evidence necessary to substantiate the claim for service connection for hypertension, to include service connection based on ACDUTRA service, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. These letters also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, service treatment records, service personnel records, leave and earning statements, post-service treatment records, and the Veteran's statements have been secured and associated with the claims file. Further, pursuant to the Board's March 2013 remand, the RO arranged for a VA examination in June 2013. For the reasons discussed in detail below, the Board finds the June 2013 VA examination to be adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records and the Veteran's history and complaints. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Hypertension is a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2013); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) are applicable for the period of active duty service from November 1990 to December 1991. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. §§ 101(22), 101(24); 38 C.F.R. § 3.6. Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). Annual training is an example of ACDUTRA while weekend drills are INACDUTRA. VA's General Counsel has interpreted that it was the intention of Congress when it defined "active service" in 38 U.S.C.A. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90. Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases such as hypertension to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the periods of ACDUTRA or INACDUTRA is not appropriate in this case. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Further, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C.A. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. In rendering a (merits) decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all 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 a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Hypertension The Veteran specifically contends that the onset of hypertension began in December 1990 while serving on a period of active duty from November 1990 to December 1991. See June 2013 VA examination report and April 2013 statement from Veteran. The Veteran does not contend, and the evidence does not otherwise reflect, that hypertension was incurred in, or caused by, active duty service or ACDUTRA service from December 1970 to November 1990. As such, the Board will only address the relevant periods of service, to include active duty service from November 1990 to December 1991 and periods of ACDUTRA service after December 1991. Active Duty Service from November 1990 to December 1991 The Veteran's DD Form 214 reflects that he served on active duty from November 1990 to December 1991. As noted above, the Veteran contends that the onset of hypertension began in December 1990. Further, in a statement dated February 2012, the Veteran maintains that blood pressure readings since active duty service were elevated such that they constituted evidence indicative of symptoms of hypertension. For VA rating purposes, hypertension means that the diastolic pressure is predominantly 90 mm Hg or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 mm Hg or greater, with a diastolic pressure of less than 90 mm Hg. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013). Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran did not sustain a cardiovascular injury or disease during service, and symptoms of hypertension were not chronic during active duty service from November 1990 to December 1991. Service treatment records for this period include the following blood pressure readings: 120/78 in January 1991; 122/84 in February 1991; 137/79, 120/84, and 118/80 in June 1991; 120/71 in July 1991; and 124/80 in August 1991. Further, in the August 1991 medical examination report, conducted for the purpose of release from active duty, the Veteran's blood pressure was 127/80. In the August 1991 report of medical history, completed by the Veteran prior to release from active duty, the Veteran checked "no" as to having had high or low blood pressure. The Board finds that none of these blood pressure readings during the period of active duty service from November 1990 to December 1991 reveal diastolic pressure predominantly 90 mm Hg or greater, or systolic pressure predominantly 160 mm Hg or greater. For these reasons, the Board finds that blood pressure readings were within normal limits during active duty service from November 1990 to December 1991. As such, the Board finds that symptoms of hypertension were not chronic during active duty service from November 1990 to December 1991. The Board further finds that hypertension did not become manifest to 10 percent disabling within one year of separation from active duty service and symptoms of hypertension were not continuous after active duty service in December 1991. Service treatment records dated after release from active duty service reveal blood pressure readings of 117/70 in October 1993, 113/80 in January 1994, and 149/80 in May 1998. The Board finds that these blood pressure readings were within normal limits. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Moreover, in two "over 40" reports of medical examination dated September 1993 and April 1998, blood pressure readings were 117/70 and 149/80, respectively. In reports of medical history, completed by the Veteran in connection with the "over 40" medical examinations in September 1993 and April 1998, the Veteran specifically denied having high or low blood pressure. The Board finds that this evidence demonstrates that hypertension was not present, to a compensable degree, within one year of separation from active duty. As such, the presumptive provisions for hypertension manifesting within one year of service are not met. This evidence also weighs against a finding of continuous symptoms of hypertension after separation from active duty in December 1991. VA treatment records further weigh against a finding of continuous symptoms of hypertension after release from active duty service. In a May 2000 VA treatment record from the Dallas VA medical center, the Veteran's blood pressure reading was 157/85 and the VA physician noted that the Veteran was provided education material on hypertension. Soon after, the Veteran was diagnosed with mild hypertension in September 2000. The Board finds that the diagnosis of hypertension, occurring approximately eight years after separation from active duty service is one factor that weighs against the claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Further, the Board finds that the Veteran's statements regarding the onset of hypertension as December 1990 are not credible as they are inconsistent with, and outweighed by, other lay and medical evidence of record demonstrating no continuous symptoms after release from active duty in December 1991. For example, in an April 2013 written statement, the Veteran reported that the onset date of hypertension was December 1990; however, during the June 2013 VA examination, the Veteran reported being diagnosed with hypertension in 2000 by the Dallas VA Medical Center, and further stated that he did not recall having hypertension at any earlier time. For these reasons, and upon review of all the evidence of record, both lay and medical, the Board finds that hypertension did not become manifest to 10 percent within one year of separation from active duty service and symptoms of hypertension were not continuous after active duty service in December 1991. The Board next finds that currently diagnosed hypertension is not etiologically related to active duty service from November 1990 to December 1991. The Veteran was afforded a VA examination in June 2013 to assist in determining the etiology of the hypertension. The VA examiner noted that an in-person examination was conducted and that the claims file was reviewed. The VA examiner stated that the Veteran had pre-hypertension while on active duty in 1991, but did not have diagnosed or elevated blood pressure that would have been consistent with hypertension. The VA examiner noted that the Veteran developed hypertension nine years after active duty service, he had a positive family history for hypertension, and was a smoker for about 15 years. The VA examiner also reasoned that the Veteran was obese and, as the weight increased, so did the blood pressure. Based on these reasons, the VA examiner opined that hypertension was less likely than not incurred in or caused by service. The Board finds the June 2013 VA examination report to be highly probative on the question of a possible relationship between currently diagnosed hypertension and active duty service. The VA examiner reviewed the claims file, interviewed the Veteran, and provided a detailed rationale for the opinions stated. See Prejean, 13 Vet. App. at 448-9; see also Bloom, 12 Vet. App. 185, 187; Hernandez-Toyens, 11 Vet. App. at 382. Based on the evidence of record, both lay and medical, the Board finds that the weight of the competent and credible evidence is against a finding of relationship between the Veteran's hypertension and active service from November 1990 to December 1991. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for hypertension, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ACDUTRA Service Beginning May 2000 As noted above, VA treatment records reflect that the Veteran had elevated blood pressure readings (157/85) as early as May 2000 and was subsequently diagnosed with mild hypertension in September 2000. Because the Veteran had numerous periods of ACDUTRA service after the diagnosis of hypertension in 2000, the Board will consider whether service connection is warranted for hypertension during any period of ACDUTRA service beginning May 2000. The Board recognizes that the Veteran was actually diagnosed in September 2000; however, in providing the Veteran the benefit of the doubt, the Board will consider service connection during ACDUTRA service beginning May 2000, as the evidence demonstrated elevated blood pressure readings at that time. Service personnel records and leave and earning statements reflect that the Veteran served on ACDUTRA from May 22, 2000 to May 24, 2000; June 25, 2000 to June 29, 2000; August 10, 2000 to August 28, 2000; October 30, 2000 to November 3, 2000; November 18, 2000 to November 19, 2000; March 11, 2001 to March 16, 2001; March 24, 2001 to March 25, 2001; May 16, 2001 to May 20, 2001; June 2, 2001 to June 3, 2001; June 9, 2001; August 13, 2001 to August 17, 2001; January 12, 2002 to January 13, 2002; March 23, 2002 to March 24, 2002; May 5, 2002 to May 7, 2002; May 18, 2002 to May 19, 2002; and October 26, 2002 to October 27, 2002. The Board will not address the numerous periods of ACDUTRA service prior to May 2000 as the evidence does not reflect a diagnosis of hypertension prior to that time. Further, the Veteran does not contend, and service treatment records do not otherwise reflect, that the Veteran incurred hypertension during periods of ACDUTRA prior to May 2000. The Board will also not address any periods of INACDUTRA. Because hypertension is considered a disease and not an "injury," service connection may only be awarded by establishing that the Veteran's hypertension had its onset during, or was aggravated by, a period of ACDUTRA in relation to the Veteran's service in the Army Reserve. Service connection for hypertension is not warranted for INACDUTRA service unless there is a showing of acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. See 38 C.F.R. § 3.6(a). In the present case, the evidence does not demonstrate any indication that myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurred at any time during the Veteran's INACDUTRA service. As such, the Veteran's periods of INACDUTRA may not serve to establish service connection for hypertension. A veteran is generally presumed to be in sound condition except for defects noted when examined and accepted for active duty service. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-2003. However, the Court has held that regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation were inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). The presumption of soundness will apply to a period of ACDUTRA only if "veteran" status has been established through a prior period of active duty and an entrance examination was performed prior to the period ACDUTRA. Id. In this case, although the Veteran is a "veteran" as he served on active duty from November 1990 to December 1991, the record does not reflect that he was provided a service entrance examination upon entrance into ACDUTRA service in May 2000 or during any ACDUTRA period thereafter. Therefore, the presumption of soundness does not apply to these periods of ACDUTRA service. The Board finds that the weight of the evidence of record demonstrates that hypertension, first manifested in May 2000, was neither incurred in, nor aggravated by, a period of ACDUTRA service. Service treatment records reveal no complaints, diagnosis, or treatment for hypertension or related symptoms during any period of ACDUTRA service beginning May 2000. Further, although VA treatment records reveal continued treatment for hypertension, a worsening of hypertension has not been related to any period of ACDUTRA service. The Veteran himself has not maintained that hypertension was incurred in, or aggravated by, ACDUTRA service; instead, as noted in the previous section, the Veteran stated that hypertension first manifested during active duty service in 1990. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for hypertension for any period of service, to include ACDUTRA service beginning May 2000, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hypertension is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs