Citation Nr: 1338172 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-12 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for headaches, to include as due to an undiagnosed illness or as due to hypertension. 3. Entitlement to an increased rating for a left ankle strain, currently evaluated as 20 percent disabling. 4. Entitlement to a total disability rating for compensation based on individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to April 1986 and from October 1986 to October 1991, to include service in the Southwest Asia Theatre of Operations from August 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in May 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and a rating decision entered in November 2010 by the RO in Winston Salem, North Carolina. Current jurisdiction of the Veteran's claims folder is held by the Winston-Salem RO. This case was previously before the Board in July 2013, at which time service connection for an acquired psychiatric disorder was granted, as were claims to reopen for service connection for headaches, low back and neck disorders, a bilateral knee disability, a left shoulder disorder, and hypertension; merits-based denials of the reopened claims for service connection for low back, neck, bilateral knee, and left shoulder disorders followed. Claims for service connection for a traumatic brain injury and a right shoulder disorder, as well as a claim to reopen for service connection for pes planus, and a claim for increase for left ankle disability, were also denied. In addition, the Board remanded the reopened claims for service connection for hypertension and headaches and the TDIU claim to the RO via the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken. Following the AMC's attempts to complete the requested actions, the case has been returned to the Board for additional review. The only appellate issues now before the Board are the ones set forth on the title page of this document, contrary to the AMC's supplemental statement of the case issued in September 2013 which reflects that additional adjudication of those issues addressed by the Board's final administrative decision of July 2013. Those matters, other than the reopened claims for service connection for hypertension and headaches and for a TDIU, do not remain on appeal. The Board takes note of the fact that the Veteran's service representative in his appellate brief of October 2013 raised a new claim for an increased rating for a left ankle disorder. Such matter is inextricably intertwined with the appellate issue of TDIU entitlement, per Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other), and must be addressed on remand prior to the Board's consideration of the TDIU issue on appeal. Notice is also taken that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of the Veteran's entitlement to service connection for headaches and to a TDIU, as well as the intertwined issue of entitlement to an increased rating for a left ankle disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO through the AMC. FINDING OF FACT Despite some elevated blood pressure readings in service and thereafter, hypertension is not shown to be present in or after service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein to include as due to an undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder, including that which is part of his virtual claims folder. 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 Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim(s). 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 law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Preliminary Matters As indicated above, the Board remanded this matter to the AMC in July 2013 in order to accomplish certain development, including the conduct of a VA medical examination and solicitation of a medical opinion as to the nature and etiology of the Veteran's claimed hypertension. All of the actions sought by the Board through its prior development request as to the issue of service connection for hypertension now appear to have been completed as directed, and it is of note that neither the Veteran, nor his representative, contends otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). No further development actions in this regard are thus deemed necessary. Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notification obligation in this case was accomplished by way of a February 2010 letter from the RO to the Veteran, addressing his claim to reopen for service connection for hypertension. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini, supra. Here, full VCAA notice, including that pertaining to the assignment of ratings and effective dates, occurred prior to the RO's initial adjudicatory action regarding the hypertension claim in November 2010, in accord with Pelegrini. In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The record includes the Veteran's service treatment records, in addition to a various medical examination and treatment reports compiled during postservice years. It further includes the Veteran's many written statements. Moreover, the Veteran has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that the Veteran has been afforded a VA medical examination regarding his hypertension claim. That evaluation was undertaken in August 2013 and it entailed a complete review of the Veteran's VA claims folder, as well as a clinical examination and medical history, followed by entry of a medical opinion that hypertension was not present then or in the past. In all, the medical report provided as a result, inclusive of the findings and opinions therein, is found to be sufficiently detailed and predicated on a review of all the pertinent evidence so as to permit fair and equitable consideration of the merits of the issue presented. Id. On that basis, further development as to the issue herein addressed on the merits is not required. In view of the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. Service Connection Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA is authorized to compensate any Persian Gulf veteran suffering from a qualifying chronic disability resulting from an undiagnosed illness, a medically unexplained multi-symptom illness, or any diagnosed illness that the VA Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). The requirement that there be a current disability is satisfied when the disability is shown at any time during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Alternatively, the nexus between service and the current disability may be satisfied by medical or lay evidence as to ongoing symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 38 U.S.C.A. § 1154(b) (West 2002) provides that, in the case of a veteran who engaged in combat with the enemy during a period of war and the claimed disease or injury is combat-related, lay evidence of inservice incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. In this instance, the Veteran does not allege, nor does the record show, that he was engaged in combat against the enemy and also sustained the claimed disorder as a result. To that extent, the pertinent provisions of 38 U.S.C.A. § 1154 are not for application. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A.§ 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Id., see also, 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's principal allegation, as reflected in his claim documents, is that his hypertension originated in service. Inservice testing is noted to have shown abnormally elevated blood pressure readings and those continued after his discharge from service leading to a diagnosis of hypertension in the 2000s and treatment therefor. Service treatment records document two instances of five-day blood pressure checks in December 1983 and February 1984, respectively. The first check was prompted by one or more elevated blood pressure readings recorded in October 1983. No diagnosis of hypertension was rendered as a result of either check; however, there were several findings of elevated blood pressure readings during both checks. Service examination and treatment records are otherwise negative for any pertinent complaints, finding, or diagnosis and the Veteran was not provided a separation examination at the end of either of his periods of active duty service. Following the Veteran's last discharge from service in October 1991, no complaint, finding, or diagnosis of hypertension is shown until 2005. Blood pressure readings obtained from February 2005 to January 2006, as reflected on a VA Form 10-7987j received into the record in February 2006, included 120/76, 114/80, 163/108, 146/97, 139/91, 135/94, 127/94, 120/89, 137/99, 127/92, 136/89, 146/91, 167/100, 155/98, 141/96, 140/90, 156/98, 139/91, 162/96, and 124/77, most of which were recorded during a six-day hospitalization in December 2005. That period of hospital evaluation and care was prompted by the Veteran's complaint of anxiety-related chest tightness, with depression and a history of psychiatric disablement. On the hospital evaluation conducted on December 19, 2005, a blood pressure reading of 139/91 was obtained, and a review of his chart by the examining physician's assistant was noted to show most systolic and/or diastolic blood pressure readings were elevated. He was not noted to be in receipt of any antihypertensive treatment. On that basis, the physician's assistant offered an opinion that the Veteran's blood pressure was likely the major cause of his headaches, although the possibility of tension headaches was also present. The Veteran was noted to have been advised of the need for treatment for his hypertension and he was placed on a low sodium diet and nifedipine was prescribed. No reference to either hypertension or its treatment is shown in the hospital discharge summary and no diagnosis of hypertension was recorded therein. Following the December 2005 hospitalization, much additional medical treatment was received by the Veteran for disorders other than hypertension. Many blood pressure readings are identified in the treatment records compiled, some which were within normal limits and others which were elevated, if not significantly. That notwithstanding, no pertinent diagnosis or use of nifedipine or other medication specifically prescribed for control of elevated blood pressure is indicated. In an effort to more clearly identify the nature and etiology of the claimed disorder, the Veteran was afforded a VA medical examination in August 2013. Blood pressure readings of 149/103, 148/98, and 146/98 were recorded. In response to the question of whether the Veteran then had hypertension or had ever been diagnosed with hypertension, the VA examiner replied in the negative. Following a clinical interview with the Veteran and a review of his claims folder, the VA examiner noted that the Veteran had isolated elevation of his blood pressure during and subsequent to service, noting that two five-day blood pressure checks, totaling 39 in all, averaged out as normal and that the elevations of blood pressure after service were only episodic. No use of antihypertensive medication was noted, nor was the Veteran reported to carry a diagnosis of high blood pressure. Any diagnosis of hypertension or isolated systolic hypertension was not confirmed by blood pressure readings taken two or more times on at least three different days. No history of diastolic blood pressure elevation to predominantly 100 or more was found. Also, the VA examiner opined that the blood pressure elevations of the Veteran were more likely than not physiological, rather than pathological. The Board has considered the evidence of record and finds that the VA clinician's findings and opinions are highly probative for demonstrating that the Veteran does not now have current disability involving hypertension. The reporting clinician supported his opinions through a detailed review of the claims folder, including the pertinent facts identified by the evidence, and determined that no current diagnosis of hypertension was warranted, as the elevations of the Veteran's blood pressure was physiological as opposed to pathological. The Board is mindful of the elevations of the Veteran's blood pressure identified in service and since the 2000s and a separate determination in December 2005 by a VA physician's assistant that the Veteran's elevated blood pressure was most likely the result of his headaches, although no such diagnosis was reported in the hospital discharge summary. While a diagnosis of hypertension was not specifically outlined in December 2005, it was indicated that treatment for hypertension was needed and implemented. The record nonetheless fails to show any diagnosis of hypertension in service or for years and years following the Veteran's last discharge from service. Moreover, even after the indication in December 2005 that hypertension might be present, the Veteran is not shown to have been followed medically for hypertension, nor was treatment by medication or diet otherwise noted in subsequently compiled examination or treatment reports. In all, the evidence refuting the existence of hypertension outweighs the limited evidence to the contrary. Inasmuch as current disability involving hypertension is not shown throughout the appeal period, any question as to the relationship of hypertension to claimed headaches is rendered moot. As well, a known clinical diagnosis of hypertension is not established, there is absent from the record persuasive evidence that any fluctuations in the Veteran's blood pressure are attributable to qualifying chronic disability due to an undiagnosed illness or any multi-symptom complex The Veteran's blood pressure changes have been determined by a medical professional to be physiological, that is, a part of the normal, healthy functioning of the Veteran's individual body system(s) and not pathological. Those elevations were attributed to headaches during a December 2005 hospitalization for psychiatric reasons, but neither hypertension nor headaches were among the final diagnoses set forth at hospital discharge. No other medical professional has determined that the Veteran's elevated blood pressure readings are other than physiological. It, too, is significant that the Veteran's service in the Southwest Asia Theatre of Operations occurred at a point subsequent to the brief inservice periods of blood pressure elevations in 1983 and 1984 and service connection under 38 C.F.R. § 3.317 may not be granted on the basis of inservice aggravation. Accordingly, service connection for elevated blood pressure readings due to undiagnosed illness or multi-symptom complex is not in order. Although lay persons such as the Veteran are competent to provide opinions on some medical issues, the specific matter here (hypertension or undiagnosed illness involving elevated blood pressure readings and the date of onset) falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Likewise, per Jandreau the Veteran is competent to state what he has personally observed or what others have told him. But, in this instance, the evidence contraindicating entitlement outweighs evidence supporting the Veteran's position that he has hypertension of service origin. The Veteran is not competent to self-diagnose hypertension, as he has not been shown to possess the requisite medical training, expertise, or credentials needed to render such a diagnosis or a competent opinion as to its medical causation. Otherwise, nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in diagnosing and evaluating infectious diseases. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In addition, to the extent his lay assertions and statements are competent and probative regarding the existence of relevant symptomatology both during and after service, they are found to be outweighed by the more probative medical opinion of 2013, which concluded that hypertension was not present. As the evidence presented preponderates against entitlement to the benefit sought, the Board must deny the Veteran's appeal for service connection for hypertension, to include as due to undiagnosed illness. Because the evidence in this case is not approximately balanced with respect to the merits of these claims, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for hypertension, to include as due to undiagnosed illness, is denied. REMAND By its July 2013 remand, the Board directed the AMC to afford the Veteran a VA medical examination for evaluation of his claimed headaches. As part of that examination, the Board asked that a medical opinion be obtained as to whether the Veteran's headaches were attributable to a known clinical diagnosis and, if so, whether they were etiologically related to any incident of service. That examination occurred in August 2013 and yielded a diagnosis of chronic headaches, with the VA examiner noting as well that migraine headaches were present. No specific response was offered as to the existence of a known clinical diagnosis, but the VA examiner attempted to offer an opinion as to the follow-up question regarding service onset. The actual response was as follows: WAS LESS LIKELY AS NOT (LESS THAN 50/50 PROBABILITY) PERMANENTLY AGGRAVATED BY as above The rationale for the opinion was that the Veteran was seen one time in October 1983 and complained of headaches following a parachute incident and was given a diagnosis of possible stress headaches. Also, it was noted that he underwent a periodic physical in October 1986 and denied any history of head trauma and that records were silent until about 2004 when he was noted to have headaches. The rationale stated above is inconsistent with the opinion provided as to likelihood of aggravation. This is a case where service incurrence is alleged, and specifically, it is asserted that the Veteran's headaches followed inservice head trauma from a parachute jump in October 1983 and a motorcycle accident in January 1987. As such, the primary question at issue is whether the Veteran's headaches are of service onset, a subset of which entails the question of whether the inservice head trauma resulted in the incurrence of his headaches. Aggravation, on the other hand, is for application where the claimed disorder preexisted a period of service and, here, there is no indication in the record that headaches preexisted the initial period of service and so aggravation might only apply if the claimed disorder is shown to have preexisted the Veteran's second period of active duty. None of the foregoing considerations, to include the question of undiagnosed illness, were adequately addressed by the VA examiner's opinion and remand is required for corrective actions. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) In addition, initial development and an adjudication of the intertwined claim for increase for a left ankle disorder is necessary on remand. Further action by the Board as to the intertwined issue of TDIU entitlement is deferred, pending completion of the development needed as to the claim for service connection for headaches and the claim for increase for left ankle disability. Accordingly, this case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain for inclusion in the Veteran's VA claims folder any pertinent records of VA medical treatment not already on file. 2. Undertake initial development and adjudication of the recently raised claim for increase for a left ankle strain and, if denied, notify the Veteran of the action taken and his appellate rights. The Veteran is instructed that the timely entry of a notice of disagreement, as well as the timely submission of a substantive appeal following issuance of a statement of the case, are necessary for the Board to consider that issue on an appellate basis at a later point in time. 3. Return the report, dated August 22, 2013, of a medical opinion obtained following a VA medical examination at the VA Outpatient Clinic in Winston-Salem, North Carolina, to the examiner for the preparation of an addendum to his earlier medical opinion. That addendum should address the question of the nexus, if any, between the Veteran's claimed headaches and his periods of active service. The Veteran's VA claims file must be furnished to the examiner, or in the event he is unavailable to his designee, for use in the study of this case and the author of the addendum should indicate whether the claims folder was provided and reviewed. Following a review of the claims folder, the reviewing VA medical professional is asked to address the following questions, providing a complete rationale with citation to the record for the medical opinion furnished: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's headaches are attributable to a known clinical diagnosis? If so, the diagnosis or diagnoses should be stated. b) If and only if the Veteran's headaches are attributed to one or more known clinical diagnoses, is it wholly unequivocal that any such disorder preexisted either period of active service, and, if so, is it equally unequivocal that any preexisting entity did not undergo inservice aggravation? c) If the response to either of the inquiries in (b) above is no, is it at least as likely as not (50 percent or greater probability) that any diagnosed headache disorder originated in service or is otherwise attributable to military service or any event therein, including but not limited to inservice head trauma from a parachute jump in October 1983 and/or a motorcycle accident in January 1987? The occurrence of those events and the Veteran's complaints of headaches following same, if any, are to be fully addressed. A complete rationale should be provided for all expressed opinions. 4. Readjudicate the claims on appeal, including the Veteran's TDIU entitlement, and if any benefit sought on appeal is not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs