Citation Nr: 1335489 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-31 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD) and/or obstructive sleep apnea (OSA). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from August to December 1997 and from February 2003 to January 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the benefit sought on appeal. The Veteran testified before the undersigned at a Board hearing at the RO in May 2010. A transcript of the hearing is of record and has been reviewed. In August 2010, the Board remanded the case to the Appeals Management Center (AMC) in Washington, SC, for additional development. FINDINGS OF FACT 1. The AMC/RO completed the additional development directed in the August 2010 Board remand. 2. The Veteran was not in sound condition upon entry into active service, as existing hypertension was noted on examination. 3. The preponderance of the evidence of record shows the Veteran's hypertension did not chronically worsen as a result of his military service or as a result of his service-connected PTSD or OSA. CONCLUSION OF LAW The criteria for an award of service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court Of Appeals For Veterans Claims (Court) has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in October 2007, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule, told how effective dates are assigned, and given examples of the evidence he could submit. The Board finds the October 2007 letter was time- but not entirely content-compliant. See 38 C.F.R. § 3.159(b); see also Dingess/Hartman, 19 Vet. App. 473. The October 2007 RO letter informed the Veteran how to prove a claim for service connection on a direct basis, whereas the Veteran based his claim on aggravation of a preexisting disease. The Board, however, finds the Veteran was not prejudiced by the initial content error. First, the Veteran was informed of the applicable standards concerning aggravation in the Statement of the Case (SOC). Second, the Veteran demonstrated by his correspondence that he was aware of the requirements for service connection on the basis of aggravation. Third, and finally, neither the Veteran nor his representative has asserted having been misled or confused by the initial content error, or otherwise prejudiced in the pursuit of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696, 173 L.Ed.2d 532 (2009) (prejudice not presumed for notice-type errors). The Veteran first asserted entitlement to service connection on a secondary basis in his December 2008 Substantive Appeal (VA Form 9). A March 2009 RO VCAA letter informed the Veteran of the requirements for secondary service connection, and the matter has since been readjudicated. Hence, the Board finds that any timing deficiency in this respect has been cured. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As earlier noted, the Veteran testified at a hearing before the undersigned at the RO in May 2010. The Court has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the undersigned identified the issues on appeal and solicited information as to treatment and findings related to the claimed disability; and, ensured the Veteran was aware of the evidence needed to substantiate his claim. As noted earlier, the Board then remanded the claim to obtain evidence expected to assist the Veteran in substantiating the claim. The Board thereby fulfilled its duty under Bryant. Further, neither the Veteran nor his representative has made any specific assertion of prejudice due to the manner in which the hearing was conducted. See Shinseki, 129 S. Ct. 1696. In light of all of the above, the Board finds VA complied with the VCAA notice requirements. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA outpatient records. Additionally, the Veteran was provided VA examinations. The Board remanded the case for an additional examinations and nexus opinion. The examination report is of record. Neither the Veteran nor his representative asserts that there are additional records to be obtained. For the reasons set forth above, the Board also finds VA has complied with the VCAA assistance requirements. 38 C.F.R. § 3.159(c). Hence, the Board finds appeal is ready to be considered on the merits without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the 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). Applicable Laws and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and, a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b), however, only apply to chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as hypertension, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows 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. If a pre- existing disorder is "noted" on entering service, the Veteran has the burden of showing an increase in disability during service. If the Veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner, 370 F.3d at 1096. There is no aggravation of a preexisting disease or injury if the condition underwent no increase in severity during service on the basis of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Also, intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997). A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis In his October 2007 claim, the Veteran asserted that his existing hypertension increased in severity due to the stress of serving in Iraq. As support for his assertion, he noted that he was given two prescriptions by a VA doctor to treat his increased hypertension. The Veteran denied any prior history of high blood pressure on his March 1997 Report of Medical History for pre-entry examination. The March 1997 Report of Medical Examination For Enlistment in the Reserve, however, reflects a blood pressure reading was 139/94. Multiple readings continued to show diastolic pressure above 90, and his average reading was 139/93. He was deemed not qualified for service in the Reserve with a Physical Profile of P3, and Physical Category of C. Later in March 1997, the Veteran obtained a waiver that allowed him to enter the Reserve. The service personnel records do not contain the specifics of the waiver, but the available documentation reflects that the Veteran's physical category was changed from C to B, and his Physical Capacity under PUHLES was assessed as P2. The Veteran's medical records are silent as to hypertension for the period from December 1997 to June 2002. The available records, and the Veteran's hearing testimony, indicate he did not require medication until June 2002. See Transcript, p. 12. This was well after his separation from his 1997 tour of active service, and prior to his final tour of duty. A June 2002 Report of Medical Examination For retention in the Reserve notes that the Veteran was taking Norvasc 5 mg for his blood pressure, and that his primary personal physician started him on the medication that same month. Also noted was that the Veteran was taking Prozac for depression. The report reflects the Veteran's blood pressure was 168/108. The Veteran was deemed qualified for retention in the Reserve with a Profile of P1. It was noted in Block 78, however, that his blood pressure be closely monitored with checks and medication adjustment. A March 2003 entry in the service treatment records reflects complaints of elevated blood pressure. The reading was 161/74, and the dosage of medication was increased from 5 to 10 mg. At a subsequent recheck, blood pressure was 158/88. The Veteran's December 2003 Report of Medical History for his examination for demobilization and separation reflects that he was still being treated for hypertension with Norvasc 10 mg, as well as Prozac 20 mg for depression. The examiner noted the Veteran's essential hypertension and his high cholesterol, for which he also took prescribed medication. The Veteran was deemed physically qualified for separation from active service. The RO arranged an examination for the Veteran in 2008 for which he failed to appear. The Veteran informed the RO that he did not receive notice, and he asked that the examination be rescheduled. Upon VA examination in February 2010, the Veteran reported that he was first informed of his hypertension in 2004 while he was in Nevada. At that time, his blood pressure reading was 150/100, and he was started on medication. The report also noted the Veteran's service in Iraq throughout 2003. The diagnosis of hypertension in 2002 was noted. The examiner noted the Veteran's hypertension had been well controlled during the year prior to the examination. The Veteran's current medication for his hypertension was noted as HCTZ, Amlodipine, and Lisinopril. He did not recall the dosages. Physical examination revealed blood pressure readings of 151/86, 134/84, and 143/86. Heart sounds revealed normal S1 and S2. There was no S3 or S4, or click or rub. The Veteran's occupation was substitute school teacher and bouncer at a bar. His reported time lost from work due to hospitalization for treatment of a dog bite. The examiner opined that most likely the Veteran's hypertension was not due to or aggravated by his active service. The examiner noted that the Veteran's hypertension was present in 2002, prior to his final tour of active duty. As for aggravation, while there were high readings during the Veteran's active service, there also were normal readings. Thus, there was no significant evidence of a worsening of the Veteran's hypertension. The examiner also noted hypertension is known to be idiopathic in the vast majority of individuals. The Board notes that idiopathic means a specific cause cannot be identified. Lanthan v. Brown, 7 Vet. App. 359, 361 (1995). "[D]efined in DORLAND'S MEDICAL DICTIONARY 815 (27th ed. 1988) as 'of the nature of an idiopathy [a morbid state of spontaneous origin; one neither sympathetic nor traumatic]; self-originated; of unknown causation." Allen v. Brown, 7 Vet. App. 439, 443. The August 2010 Board remand directed another examination so the impact, if any, of the Veteran's PTSD and his then recently service-connected OSA could be assessed by a medical examiner. A September 2010 examination report reflects that the examiner conducted a review of the claims file. He noted the Veteran's diagnoses of PTSD and OSA. The examiner also noted the Veteran's June 2002 diagnosis and his in-service history of his hypertension, which included the increase of his Norvasc dosage from 5 to 10 mg in March 2003, and a November 2003 reading of 141/78. Following the Veteran's separation from active service, additional medication was prescribed to control his hypertension. Physical examination revealed blood pressure readings of 127/81, 122/83, and 130/77. The Veteran did not provide three home readings. Heart and lung examinations were normal. The examiner diagnosed primary hypertension. The examiner opined the Veteran's hypertension was not caused or aggravated by active service, as it was diagnosed prior to such service, and there was no evidence that it worsened beyond the natural course of progression. The examiner also opined the Veteran's hypertension was not due to or aggravated by his PTSD, as there was no literature to support chronic hypertension and PTSD/major depressive disorder, as each is a separated medical condition. With respect to the question of whether there was any causal link between the hypertension and OSA, the examiner noted that the Veteran's hypertension was diagnosed and treated prior to diagnosis of moderate OSA. Further, the examiner opined, the Veteran's moderate OSA was currently resolved with the nightly use of a CPAP device and that the Veteran's hypertension medications prior to and after his treatment for OSA are similar. Thus, the examiner opined, the OSA did not aggravate the hypertension. Again, in the present case, hypertension was noted on entry to the Veteran's second tour of active service. Accordingly, the presumption of soundness does not apply. See 38 U.S.C.A. § 1111. Rather, the presumption of aggravation applies. Specifically, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). In this case, VA examination in September 2010 clearly indicated that any in-service increase was attributable to such natural progress and, as such, the claim cannot be granted on the basis of in-service aggravation. In reaching the above conclusion, the Board acknowledges an April 2009 statement from the Veteran's representative, in which it was asserted that the hypertension was aggravated in active service because the dosage of his Norvasc was increased. This, of course, is a lay assertion. The February and September 2010 examination reports reflect the assessments of medical professionals, which concluded that the existing hypertension did not increase severity. Further, to have significant credence, the representative's assertion would have to be accompanied by medical evidence that the initially prescribed 5 mg was a sufficient dosage, and/or would also need to account for any expected increase attributable to the natural progression of the disease. It is observed that the Norvasc dosage remained at 10 mg until after his separation, indicating that the condition did not continue to further worsen in service to the point requiring an even higher dosage. The Veteran's second medication was for depression. In an undated statement, the Veteran conceded the preexistence of his hypertension. He then asserted that, while he had hypertension before PTSD, he believed it reasonable to assume that his PTSD exacerbated his hypertension. He reasoned that PTSD caused him to get angry and, in such circumstances, he believed his hypertension was affected. The Veteran then suggested that anger increases the secretion of adrenaline, which he believed was not good for his blood pressure. He noted that he had checked his blood pressure while angry, and his diastolic pressure has been higher than 170. He suggested this process would become greater as he aged. Although he took his medication, used his CPAP machine, and rarely drank, he did not have much control over his PTSD. Regarding the above statements, the Board notes that the potential relationship between hypertension and PTSD involves a complex medical question that extends beyond that observable to the senses. Accordingly, the Veteran, as a lay person is not competent to opine on such matters and his statements in this regard do not constitute probative evidence. Indeed, while he can report his blood pressure readings taken when angry, he lacks the medical qualifications to draw medical conclusions from this data. For example, even if his blood pressure readings were consistently higher during periods when he felt angry, this would not necessarily support his contentions, as "aggravation" in the context of a claim of service connection requires a permanent, rather than temporary worsening. Again, only a medical professional could address whether permanent worsening has occurred based on the readings shown by the evidence of record. In sum, the evidence set forth earlier shows the Veteran has not carried his burden of showing the severity of his hypertension increased during his active service. See Wagner, 370 F.3d 1089. As discussed above, The Board acknowledges that there are certain disorders which a lay person is capable of identifying, i.e., varicose veins. See generally See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds a lay person, with the assistance of a common cuff, is capable of taking and recording blood pressure readings. The Board notes further that a lay person may, under certain circumstance provide competent evidence of diagnosis and etiology. Id. Generally those circumstances are where lay reported history is combined with the observation and assessment of a medical professional. In the Veteran's case, the Board finds a medical determination of whether a disorder is chronically worsened by a given circumstance is beyond the training and experience of the average lay person. See 38 C.F.R. § 3.159(a). (Emphasis added). In light of the above, the Board finds the representative's initial assertions are not probative. While the Veteran's home readings may have indicated spikes in his blood pressure, they do not constitute a chronic worsening, as the VA medical examiner opined. The available literature does not show support of a chronic worsening of hypertension by PTSD. The Veteran's lay opinion to the contrary is not probative. See 38 C.F.R. § 3.159(a). In the September 3023 Informal Hearing Presentation, the Veteran's representative asserted that the VA examiner who conducted the September 2010 examination was not a hypertension expert or a mental health professional; hence, a remand is needed for review by a qualified examiner. The Board rejects the assertion. The September 2010 examination was conducted by a nurse practitioner and countersigned by a VA physician. A nurse practitioner is competent to evaluate the potential relationship between Veteran's hypertension and his PTSD and OSA, the opinion of which was based on relatively routine clinical findings and was ultimately approved and signed by a physician. See Cox v. Nicholson, 20 Vet. App. 563 (2007) (noting that there is no requirement that medical examinations be conducted by physicians only; VA may satisfy its duty to assist by providing a medical examination performed by a nurse practitioner, and that the issue involves whether the individual has the types of education and clinical training to evaluate the medical issue at hand). The nurse practitioner and the physician supervisor were just as capable of examining the Veteran and reviewing and assessing the applicable medical literature as a psychiatrist. Thus, the Board finds no deficiency in the September 2010 examination. In light of the foregoing, the Board is constrained to find the preponderance of the evidence is against the Veteran's claim on all bases: direct service connection, as the evidence of record shows hypertension existed prior to service and it was not aggravated in severity by the rigors of active service; and also on a secondary basis, as the evidence shows Wallin elements 1 and 2 are present but not 3. The medical evidence shows no causative or aggravating relationship between the hypertension and PTSD or OSA. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for hypertension, to include on a secondary to PTSD and/or OSA is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs