Citation Nr: 1337405 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-17 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertensive heart disease/left ventricular hypertrophy (LVH), to include as secondary to hypertension. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1969 and from May 1972 to July 1990. These matters comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2008 the Veteran testified before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. The Veteran initially filed a claim for service connection for hypertension. In light of the evidence of record, and the decision below to grant service connection for hypertension, the Board has recharacterized the issues on appeal as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In an October 2013 Informal Hearing Presentation (IHP), a Veterans Service Organization representative asserted that a claim for service connection for diabetes mellitus should be developed. The issue of entitlement to service connection for diabetes mellitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this matter and it is referred to the AOJ for appropriate action. During the March 2008 hearing, the Veteran's representative asserted that the Veteran had developed a cardiac condition secondary to his hypertension. In the July 2011 remand, the Board instructed that the Veteran be afforded a VA examination. This issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has current hypertension which was incurred in service. CONCLUSION OF LAW The criteria for the establishment of service connection for hypertension are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court), in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements apply to all elements of a claim. Given the favorable disposition of the claim decided below, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Analysis Despite multiple actions by the RO and the Appeals Management Center (AMC), the Veteran's service treatment records are not of record. When service treatment records, VA records, or records from another government agency are missing, VA has heightened duties to assist and "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Service connection can be granted for certain chronic diseases, including hypertension, if manifest to a degree of 10 percent or more within one year of separation from active service. Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), when a chronic disease is shown as such in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). According to VA schedular guidelines, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater and isolated systolic hypertension means the systolic blood pressure is predominantly 160 or greater with diastolic pressure of less than 90. See 38 C.F.R. § 4.104 Diagnostic Code 7101. The Veteran has repeatedly reported that he was diagnosed with and treated for hypertension during service. During the March 2008 hearing, the Veteran testified that he first had trouble with his blood pressure in 1986 on the U.S.S. Harlan County. He reported that his blood pressure was monitored once a week for eight or nine months; that he adjusted his diet, but his blood pressure was still high and he was prescribed medication. He reported that his blood pressure nonetheless stayed high but did not worsen. He denied being on blood pressure medication since 1987 because of difficulties with VA regarding treatment resulting from the absence of his service treatment records but later sought treatment at the Naval Hospital. He alleged that electrocardiogram (EKG) testing then indicated no improvement and that he had periodically been going to the Naval Hospital since around 1994 and that he had been taking blood pressure medication from that time forward. S.D.H. reported that he served as the Navy corpsman on the U.S.S. Harlan County from March 1986 through February 1989. He stated that he provided medical services to the Veteran for hypertension. S.D.H. indicated that the Veteran was diagnosed with hypertension, was prescribed medications to assist in controlling his blood pressure, and presented weekly for blood pressure monitoring. Post-service treatment records, dated from April 2000 to November 2011 reflect diagnoses of and treatment for hypertension. In March 2000, the Veteran's medical history was noted to be negative by his treating physician. Blood pressure was hypertensive and he was referred to a cardiologist. In February 2004, the Veteran presented to the Jacksonville VA outpatient clinic (OPC) to establish care in the VA system. He reported hypertension for two years. The Veteran was afforded a VA examination to evaluate his claimed hypertension in October 2011. He reported that his blood pressure was high in the late 1980s, prior to retirement from service. He stated that medications were started prior to leaving service, adding that, when he went in for appointments, he was told his blood pressure was elevated. The examiner summarized the March 2000 physical indicating that the Veteran had no past medical history. She also specifically acknowledged other pertinent post-service records, including an April 2000 exercise tolerance test, the February 2004 VA treatment record, the letter from S.D.H., and the March 2008 hearing transcript. The examiner noted that in 2000, the Veteran was noted to have no medical history; there was then no indication that he was taking any anti-hypertensive medications, although blood pressure was quite high. As to whether hypertension began during, was related to, or began within one year of discharge from active service, the examiner reported that she could not resolve this issue without resorting to mere speculation. She stated that it appeared there was no past medical history in March 2000, despite blood pressure being quite high that day. She added that the letter from S.D.H. seemed to contradict the March 2000 and February 2004 treatment records. The examiner stated that it was possible that the Veteran was uninformed in service about his hypertension. The examiner also observed that the severity of the Veteran's hypertension and the presence of left ventricular hypertrophy supported the Veteran's contention that his hypertension began before his service discharge. However, she stated that the severity of the Veteran's hypertension in 2000 is not helpful in determining how long he had that condition, diagnosed or undiagnosed. She added that having left ventricular hypertrophy in 2000 does imply hypertension for some period of time; however, it would be speculative to make any estimation about the length of time. She stated that left ventricular hypertrophy was mild and having mild left ventricular hypertrophy was not inconsistent with the onset of hypertension in active duty. The Veteran has repeatedly reported that he had hypertension which was treated during service. He is competent to report receiving treatment for hypertension, including blood pressure checks and medication, during service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). This reported in-service treatment for hypertension is supported by the statement from S.D.H. The Veteran's service personnel records confirm that he served on the U.S.S. Harlan County between 1986 and 1989, consistent with his statements and S.D.H.'s letter. Although the October 2011 examiner commented that the March 2000 and February 2004 treatment records appeared to contradict the statement from S.D.H., she provided a possible explanation for such a contradiction: that the Veteran was uninformed in service about his hypertension and/or did not appreciate the seriousness of it or the reason for medication. This latter reason is consistent with the Veteran's March 2008 testimony that he stopped his blood pressure medication after separation from service. Based on the above, the reports of in-service treatment for hypertension are credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). While the Veteran reported during the March 2008 hearing that he started going to the Naval Hospital around 1994 and had been taking blood pressure medications since that time, he also testified that he thought his hypertension was getting better, but learned via an EKG that it had not. The March 2000 treatment record documents that the Veteran had an EKG at that time. Although it appears from the March 2000 treatment record that the Veteran was not then taking antihypertensive medications, the October 2011 VA examiner suggested the possibility that such medication may not have been recorded. Additionally, the Veteran's testimony that he thought his hypertension was getting better until undergoing EKG is consistent with his denial of past medical history in March 2000. Accordingly, the absence of a notation of a prior history of hypertension and/or blood pressure medication being taken in March 2000 does not undermine the credibility of the Veteran's statements regarding the history of his condition. There is no evidence that the Veteran had hypertension prior to service. Based on the Veteran's consistent competent and credible statements regarding in-service treatment for hypertension, supported by the statement from S.D.H., the Board finds that the Veteran had hypertension first diagnosed during service. The Veteran has described ongoing blood pressure monitoring for 8 to 9 months in service, and both he and S.D.H. have reported that he required blood pressure medication during service. Resolving any reasonable doubt in his favor, the Board finds that his in-service hypertension was chronic. The Veteran has current hypertension, as evidenced by post-service VA and private treatment records discussed above. The current hypertension had not been attributed to a clearly intermittent cause. Therefore, it is presumed to be service-connected. See Groves, supra; 38 C.F.R. § 3.303(b). There is no competent and credible evidence weighing against the claim for service connection for hypertension. While the October 2011 VA examiner stated that she was unable to resolve the matter of whether the Veteran's hypertension began during or is related to active service without resorting to mere speculation, this opinion weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). For the reasons discussed above, resolving reasonable doubt in the Veteran's favor, service connection for hypertension is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hypertension is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Remand is required to obtain a supplemental medical opinion regarding the claim for service connection for hypertensive heart disease/LVH. Because the claim is being remanded, any more recent VA treatment records should be obtained and the Veteran should be given another opportunity to clarify his wishes regarding representation. Accordingly, the case is REMANDED for the following action: 1. Clarify, in writing, the Veteran's intentions regarding representation in this appeal, and associate appropriate documentation (i.e., a VA Form 21-22 or 21-22a) with the claims file or Virtual VA e-folder. 2. Provide the Veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate his claim for service connection for hypertensive heart disease/LVH, to include as secondary to hypertension. 3. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for hypertensive heart disease/LVH. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for records from the Jacksonville VA outpatient clinic (OPC) dated since June 2011. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 4. After all available records have been associated with the claims file or Virtual VA e-folder, RETURN THE CLAIMS FILE to the physician that conducted the October 2011 VA examination, if available, for a supplemental medical opinion. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner must provide an opinion as to whether the Veteran has had hypertensive heart disease/LVH at any time since January 2005 (when he filed his claim for service connection) which is related to service or is caused OR aggravated by his service-connected hypertension. As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, her attention is drawn to the following: * Unless they are obtained on remand, service treatment records are unavailable. * The Veteran underwent a stress test and echocardiogram in April 2000 to evaluate hypertension, hypertensive heart disease, and an abnormal resting EKG. Echocardiogram revealed the left ventricle to be normal in size with borderline concentric hypertrophy. Overall left ventricular systolic function appeared to be low normal. * A May 2000 summary from the Veteran's cardiologist notes that the echocardiogram revealed borderline left ventricular hypertrophy. The impression was hypertension, better but still elevated; hypertensive heart disease beginning; bradycardia without symptoms; hyperlipidemia on Baycol, needs reassessment; and likely primary prevention. * A January 2004 ECG noted voltage criteria for left ventricular hypertrophy. * A September 2006 echocardiogram revealed normal left ventricular function, size, and wall thickness. * A November 2010 echocardiogram revealed normal left ventricular function, size, and wall thickness. The conclusions from that study included a finding that left ventricular ejection fractions ranged from 55 to 60 percent. * The October 2011 VA examiner opined that the Veteran had LVH due to his hypertension. She referred to a VA heart examination worksheet, in which she indicated that the Veteran had been diagnosed with hypertensive heart disease in April 2000. She opined that his hypertensive heart disease was due to hypertension. In rendering the requested opinion, the examiner must specifically consider and address the April 2000, September 2006, and November 2010 echocardiograms, discussed above. All examination findings, ALONG WITH A COMPLETE EXPLANATION FOR ALL OPINIONS EXPRESSED, should be set forth in the examination report. If further examination of the Veteran is deemed necessary, arrange for the appellant to undergo VA examination to obtain the above-noted opinion. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished. All examination findings, along with the complete explanation for all opinions expressed, should be set forth in the examination report. 5. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence of record. If the benefit sought remains denied the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for a response. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs