Citation Nr: 1335731 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-37 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: David Mariani, Attorney ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from January 29, 1979 to August 3, 1979, January 3, 1991 to July 6, 1991, and from January 4, 2004 to February 22, 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board additionally notes that the Veteran has been receiving a 100 percent disability rating since August 2008. FINDINGS OF FACT 1. The Veteran's hypertension is shown to have clearly and unmistakably existed prior to his most recent period of active service and clearly and unmistakably was not aggravated during this period of service. 2. Regarding his periods of service prior to 1996, the preponderance of the evidence indicates that the Veteran's hypertension was not present in service or for one year following a period of active duty nor is there credible evidence linking it to any incident of service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1153, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in July 2008 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Regulations and Analysis Service connection may be established 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 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Where a veteran served continuously for ninety (90) days or more during a period of war and cardiovascular renal disease, to include hypertension, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111. When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service. Wagner v. Principi, 370 F. 3d 1089, 1096 (2004). A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. However, aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In deciding whether a condition preexisted service, the Board must consider the veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition. 38 C.F.R. § 3.304(b)(1), (2). 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 the Veteran or obtained on the behalf of the Veteran 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran claims that his pre-existing hypertension was aggravated during his most recent active duty period, from January 4, 2004 to February 22, 2005. The Board notes at the outset that there is no indication of hypertension in the Veteran's service treatment records from his periods of active duty during 1979 and 1991 and no notation of specific treatment for such during his active duty period in 2004 and 2005. The Veteran was afforded a VA general medical examination in August 2008. The examiner noted the existence of hypertension but did not provide an opinion concerning the etiology or the onset. According to a VA examination report dated April 2012, the Veteran was diagnosed with hypertension during a non-active duty period, more specifically in 1996. The examiner indicated that the Veteran's hypertension clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond the natural progression by an in-service injury, event or illness. The examiner noted the Veteran's blood pressure readings from 2004 to 2012 as the rationale for his opinion. The Board requested an opinion from a VA physician concerning the etiology and onset of the Veteran's hypertension. The physician indicated that the Veteran's hypertension was not aggravated during his most recent period of service. The rationale was that although stress can temporarily cause a spike in one's blood pressure, the predominance of the peer-reviewed literature does not support the idea that it can cause or aggravate hypertension. The physician additionally indicated that the claims file did not provide a definite start date for the Veteran's medication for hypertension. The Board finds that the preponderance of the evidence indicates that the Veteran's hypertension did not manifest during active service, within one year of a period of active service or result from an incident of active service. The Board observes that the Veteran does not contend, and has not contended, that his hypertension began during a period of active service and there is no evidence that he was diagnosed with such disability during active service or within one year thereof. Concerning aggravation, if the Board considers the Veteran's claims of aggravation as being clear and unmistakable evidence of pre-existence, the Board must also deny the claim under a theory of aggravation. There is no indication of treatment during for hypertension during the Veteran's most recent period of active service and there is no indication of worsening. Additionally, the most recent VA opinion indicates that the Veteran's increased stress while in-service would not result in the permanent aggravation of such disability. Thus, considering direct service connection and aggravation, there is no competent evidence of record that the Veteran's hypertension either began in-service or within one year or that his hypertension was aggravated beyond the natural progression during his most recent period of active service. Thus, there is no basis with which the Board can grant the Veteran's claim for entitlement to service connection for hypertension. The Board acknowledges the Veteran's contentions that the claimed disability was aggravated by service. The Board observes, however, that he, as a layperson, is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of his claimed medical conditions, as such matters require medical expertise. The Board notes that particularly in this case, with a systemic conditions such as hypertension at issue as well as the complex medical question or whether there was worsening beyond the natural progression during a specific thirteen month period, a layperson is not capable of identifying the etiology and onset of such condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007). In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's 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, 55-57 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ JAMES A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs