Citation Nr: 1337132 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 01-08 519A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hypertension (HTN), to include on a secondary basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO denied the Veteran's request to reopen his claim of entitlement to service connection for HTN. A videoconference hearing was held in August 2006 before the undersigned Acting Veterans Law Judge, sitting in Washington, D.C. A copy of the transcript of that hearing is of record. In August 2012, the Board reopened the Veteran's claim and remanded the issue of entitlement to service connection for HTN for additional development. Due to the inadequacy of the examination conducted in November 2012, the Board remanded the claim again in April 2013. As will be discussed below, the Board finds that there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file include an October 2013 informal hearing presentation (IHP). The remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT HTN was not manifest during service, was not manifest within one year of separation, and the current diagnosis of HTN is not attributable to service or to a service-connected disorder, to include disc disease of the lumbar spine. CONCLUSION OF LAW HTN was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein; HTN is not causally-related to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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) (2012); Mayfield v. Nicholson, 20 Vet. App. 112 (2004); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified in August 2000, May 2006, February 2007, December 2008, July 2011, and August 2012, of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. These letters accordingly addressed all notice elements and the August 2000 initial letter predated the initial adjudication by the AOJ/RO in September 2000. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded on numerous occasions. Nothing more is required in this case. VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records to include Social Security Administration (SSA) records, VA examination reports, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the individual presiding over a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, supra. During the August 2006 hearing, in relevant part, the undersigned identified the present issue on appeal, and the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the current appellate claim; i.e., the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Information was elicited from the Veteran concerning the etiology of his hypertension, to include whether he had any evidence that such disability could be related to his active service or service-connected disability. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, as directed by the April 2013 Board remand, the most recent VA examination was provided in June 2013 so as to ascertain whether any claimed disorder was etiologically-related to an inservice accident, or to his service-connected lumbar spine disability, to include aggravation thereof. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination report is adequate, as the examiner included a thorough review of the file, as well as a physical examination, and provided findings relevant to the issue at hand following the examination. The Veteran's complaints and lay history were also considered and discussed, as was prior medical evidence of record to include elevated blood pressure readings during service and post service. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to these issues on appeal has been met. See 38 C.F.R. § 3.159(c)(4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield, supra. Service Connection The Veteran claims that he suffers from HTN that is either related to service on a direct basis or as secondary to his service-connected low back disability. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases, including hypertension, may be presumed to have been incurred during service if the disorder becomes manifest 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. If the condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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. See 38 C.F.R. § 3.303(d). The Court held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. At 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006. The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, supra, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, as the Veteran's claim was filed before October 2006, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the Veteran because it does not require the establishment of a baseline before an award of service connection may be made. For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Multiple blood pressure readings are required to confirm the diagnosis of hypertension with 2 or more readings on at least 3 different days. A 10 percent rating is defined as diastolic pressure predominately 100 or more, or; systolic pressure predominately 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominately 100 or more that requires continuous medication for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Background The Veteran's STRs dated from April 1964 to April 1968 include several blood pressure readings. A January 1964 enlistment examination notes a reading of 134/70. In an April 1965 record, a history of high blood pressure and a current reading of 112/96 were noted. The Veteran's March 1968 separation examination noted a reading of 144/72. The post-service medical evidence of record includes private treatment records from 1970 wherein no history of hypertension was noted and no elevated blood pressure readings were reported. A November 1975 VA examination report notes that blood pressure readings on examination were: 185/90, 180/95 and 175/90. The examiner noted that the Veteran had no history of hypertension or heart disease; however, hypertensive vascular disease was possible on the basis of the clinical findings. Additional post service private and VA records reflect report of HTN from the mid-1990's to the present day, to include the taking of medications. The Veteran has provided statements wherein he essentially claims that to have had HTN since service, as noted in his August 2006 hearing testimony and in his November 2005 VA Form 9. When examined by VA in June 2013, it was reported that the record showed that the Veteran was noted to have elevated blood pressure readings on two occasions during service. Specifically, it was noted that a reading of 112/96 was recorded in 1965 and that a reading of 144/72 was recorded in 1968. Following review of pertinent records, it was the examiner's opinion that it was less likely than not that the Veteran's HTN was related to service. For rationale, it was noted that while the appellant did have two isolated elevated blood pressure readings in service, these readings did not provide a diagnosis of HTN as per the Joint National Committee consensus statement on the diagnosis of HTN - 2 or more elevated blood pressure readings recorded shortly after an initial screen provide the diagnosis of HTN. The examiner stated that these criteria were not met, pointing out that the Veteran had normal blood pressure readings in the interval between his abnormal readings separated by several years. The examiner also opined that it was less likely than not that the Veteran's HTN was secondary to or aggravated beyond its natural progression by service-connected disabilities. For rationale, it was noted that HTN was diagnosed several years after service. While he was service-connected for several musculo-skeletal conditions which caused intermittent to chronic pain which might acutely elevate blood pressure, chronic HTN could not be solely or primarily ascribed to the Veteran's service-connected conditions as HTN was typically multifactorial due to neuroendocrine and physiologic factors. Additionally, the natural history of HTN was that the condition often worsened over time, requiring more medication to maintain control. The Veteran's worsening obesity (body mass index of 33 in 1975 and currently 43) was far more likely as the etiology of his worsening HTN rather than his orthopedic conditions. In an October 2013 IHP, the Veteran's representative maintained that the Veteran's two elevated blood pressure readings in service meet the definition of hypertension provided by the Joint National Committee consensus statement (two or more elevated blood pressure readings recorded shortly after an initial screen provides the diagnosis of hypertension). Analysis As indicated above, while elevated blood pressure readings were recorded on two occasions several years apart (1965 and 1968) during service, these particular readings were not sufficient to require treatment, or to result in a diagnosis of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Moreover, the remaining STRs fail to reveal any other evidence of elevated blood pressure readings or other indicia of hypertension. (Regarding the representative's argument that these two elevated readings in service meet the definition of hypertension provided by the Joint National Committee consensus statement, the Board again notes that that this definition indicates the standard for hypertension is based (in part) upon two or more elevated blood pressure readings recorded shortly after an initial screen. Such is clearly not shown in the STRs, as only one reading was recorded on each date, with years in between each reading. See STRs and June 2013 examination report.) The absence of a finding of HTN during service precludes service connection under 38 C.F.R. § 3.303(a). There is also no evidence to indicate that the Veteran was diagnosed with HTN within one year of his leaving active duty in 1968, so as to warrant service connection on a presumptive basis under 38 C.F.R. § 3.307 and 3.309. The earliest notation in the medical records of a possibility of HTN, as noted above, was in 1975, seven years after service. A definitive diagnosis of HTN was not noted until the 1990's, well over 20 years after service, when it was noted that the condition was present and that the Veteran took medication for it. While not necessarily outcome determine, such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Regarding the etiology of the Veteran's current hypertension, the VA examiner in June 2013 reported that there was no evidence to suggest chronicity of this disability from the time of the Veteran's discharge from military service until additional elevated blood pressure readings were noted years later. The VA examiner opined that it was less likely than not that the Veteran's HTN was related to service. The VA examiner's references to specific evidence make for persuasive rationale. There is no medical opinion to the contrary. The weight of the competent evidence, therefore, does not attribute the Veteran's hypertension to his military service, despite his contentions to the contrary. The evidence of record also does not include any medical opinion that the Veteran's current hypertension is (or might be) related to a service-connected disability. In this regard, the June 2013 VA examiner's opinion is against the Veteran's claim. The VA examiner's references to specific evidence make for persuasive rationale. Moreover, he found that the Veteran's HTN was more likely the etiology of his worsening obesity than his service-connected back disability. There is no medical opinion to the contrary. The Board acknowledges the Veteran's contention that he developed HTN during service. However as has been discussed herein, although STRs show two elevated blood pressure readings, they are negative for complaints of, treatment for, or findings of hypertension. The preponderance of the evidence is also against a finding of a continuity of symptomatology which might show a connection between the Veteran's current hypertension and his period of service. Private treatment records dated in 1970 are negative for findings related to HTN according to accepted diagnostic criteria. The only medical evidence addressing the nexus requirement is the June 2013 VA examination report in which the examiner disputed the notion that hypertension is coincident with the Veteran's military service. Such medical evidence is far more probative than the Veteran's own lay opinion. There is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render a competent medical opinion as to etiology of a disability. Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent lay evidence" is evidence provided by a person who has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (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). Because the competent evidence neither supports the claim, nor is in relative equipoise on this question, the benefit-of-the-doubt doctrine is not for application and the claim for service connection for HTN must be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hypertension (HTN), to include on a secondary basis, is denied. ____________________________________________ K. R. FLETCHER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs