Citation Nr: 1336232	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  09-27 815	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to service connection for hypertension.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran had active service from October 1979 to July 1983.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine.  The RO in New York, New York, has jurisdiction of the Veteran's claims file. 


FINDING OF FACT

There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's hypertension is related to active duty.  


CONCLUSION OF LAW

Hypertension was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Notice was provided in an October 2007 letter.  Accordingly, the duty to notify has been fulfilled. 

With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA and private medical records, and statements from the Veteran.  The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.  

A VA examination was conducted in May 2011.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination was more than adequate, as it reflects a review of the Veteran's claims file, considers all of the pertinent evidence of record, and provides a rationale for the opinion offered.  It considers all of the pertinent evidence of record, including the statements of the Veteran.  

Accordingly, the Board finds that VA's duty to assist has been met.  38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  

Legal Analysis

With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran contends that his hypertension began during active duty.  He contends that elevated blood pressure readings in his service treatment records show hypertension, and that the hypertension has continued since that time.

In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Certain chronic diseases, such as cardio-vascular disease (including hypertension), may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

For VA purposes, hypertension is defined as diastolic blood pressure that is predominantly 90 mm or greater, which is confirmed by readings taken two or more times on at least three different days.  Isolated systolic hypertension is defined as systolic blood pressure that is predominately 160 mm or greater with a diastolic blood pressure of less than 90 mm, which is confirmed by readings taken two or more times on at least three different days.  38 C.F.R. § 4.104, Diagnostic Code 7101.

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against entitlement to service connection for hypertension on a presumptive or direct basis.  

The Veteran's service treatment records are negative for any findings that were attributed to heart disease.  They do show some diastolic blood pressure readings that were 90 or greater, and one systolic blood pressure reading that was over 160.  The Veteran's July 1983 separation examination was normal and did not result in a diagnosis of hypertension.  The Veteran's blood pressure was 114/74. 

The Veteran's service treatment records do not support his claim.  They reflect that medical personnel did not interpret any of the blood pressure readings as signs, symptoms or indications of hypertension.  

The report of a November 1983 VA examination conducted in connection with a claim of service connection for hearing loss provides that the Veteran reported that his blood pressure tended to be high.  It was recorded as 140/90.  A diagnosis of hypertension was not provided.  In fact, the record does not include any diagnosis of hypertension within one year of the Veteran's separation from active duty.  Thus, service connection on a presumptive basis is not warranted.

Private treatment reports from several sources reflect that the Veteran has hypertension.  These include a May 2011 private examination report, which provides in a history section that the Veteran had a history of hypertension that appeared to have been untreated "going back to his years in the service."  

The May 2011 report does not support the Veteran's claim.  The private physician did not endorse the Veteran's self-reported history of hypertension since active duty.  Rather, the report is merely a recitation of a history provided by the Veteran.  It is not a competent medical opinion, based on the clinical or objective evidence, linking the Veteran's hypertension to his active duty.  See LeShore v. Brown, Vet. App. 406, 409 (1995) (mere transcription of lay history as reported by the veteran, unenhanced by any additional comment by that examiner, does not become competent medical evidence merely because the transcriber is a medical professional).

The May 2011 VA examination report recounts the Veteran's medical history in detail, including active duty blood pressure readings.  The diagnosis was that the Veteran had hypertension.  The examiner stated that it was less likely than not that the hypertension was related to the Veteran's military service.  She explained that there was no diagnosis or treatment for hypertension while the Veteran was in the military.  He did have a number of elevated blood pressure readings during the military.  However, he reported that he was able to pass his physical for his position as helicopter crewman.  Finally, there was no evidence for chronicity as he had only been on blood pressure medications for the last 8 years.  

The Board finds that the May 2011 VA medical opinion constitutes probative evidence against the Veteran's claim.  It is based on a review of the medical record.  It is supported by references to the Veteran's service treatment records, post-service medical records and the examiner's own medical expertise.  This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history).

The Board acknowledges the Veteran's own assertions in support of his claim.  He is competent to testify as to his observable symptoms during and after active duty.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno, supra.  Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). 

In this case, the Veteran does not contend that he observed symptoms of hypertension during or after active duty.  Rather, he asserts that his active duty blood pressure readings are evidence he had hypertension at that time.  

The Veteran's contentions do not constitute medical evidence in support of his claim.  Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case (whether the Veteran developed hypertension within one year of active duty, or whether his current hypertension is related to active duty or began during active duty) fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim.

In sum, the evidence demonstrates that the Veteran is not entitled to service connection for hypertension.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

Service connection for hypertension is denied.  



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs