Citation Nr: 1338610 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-26 711 ) 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 Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied service connection for high blood pressure. The Veteran appealed the denial of service connection in this decision, and the matter is now before the Board. This appeal was processed using the Veterans Benefits Management System electronic claims processing system. Additionally, consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system. The documents within the system do not include any non-duplicative materials pertinent to the present appeal. FINDINGS OF FACT 1. Hypertension did not have its onset during service or within one year of separation from service. 2. Hypertension is not related to service, to include exposure to Agent Orange. CONCLUSION OF LAW Hypertension was not incurred in service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 4.104 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in June 2008, prior to the initial adjudication of the increased rating claim on appeal. Notice sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of private and VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. The duty to assist was further satisfied by VA examination in June 2010, during which the examiner conducted a physical examination of the Veteran, was provided the claims file for review, took down the Veteran's history, considered private medical evidence, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required. Finally, in September 2013 the Board remanded the issue currently on appeal for readjudication through the issuance of a supplemental statement of the cases. Since that time, the Appeals Management Center issued a supplemental statement of the cases in September 2013; thus, the Board finds that the RO substantially complied with the Board's prior remand directive, and the Board may proceed with a decision at this time. See Stegall v. West, 11Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). Service Connection for Hypertension Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Cardiovascular-renal disease, which includes hypertension, is a "chronic disease" which is listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred 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 a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, including cardiovascular-renal disease (which, again, includes hypertension), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran contends that hypertension is related to in-service exposure to Agent Orange. Any veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a) (2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, ischemic heart disease shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2013) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2013) are also satisfied. 38 C.F.R. § 3.309(e) (2013). Note 3 at the end of § 3.309 defines ischemic heart disease as not including hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. Thus, the presumptive provisions of 38 C.F.R. § 3.309(e) are not applicable to the immediate claim. Nonetheless, where the evidence does not warrant presumptive service connection an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). Under VA regulation, hypertension may only be confirmed by readings taken two or more times on at least three different days. VA regulations also clarify that the term hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code (DC or Code) 7101, Note (1) (2013). The Veteran's primary contention is that hypertension began in service, or shortly after service, and is related to in-service exposure to Agent Orange. Service treatment records show no complaints or treatment referable to hypertension, and on separation examination in September 1971 the Veteran's blood pressure was 120/80 and his heart was "normal." The Veteran separated from service in September 1971. The Veteran's post-service records document a number of isolated blood pressure readings in the 1970s. Specifically, a May 1972 post-operative report shows that the Veteran's blood pressure was 130/100 - well above the threshold of hypertension for VA purposes. Records from July 1973 and July 1976 both indicated blood pressure readings of 160/100. A May 1993 VA treatment record describes a history of high blood pressure, without indicating a date of onset, and showed the Veteran's blood pressure was 170/120 at that time. From this record forward, the evidence shows that the Veteran carries diagnoses of high blood pressure or hypertension. This includes a VA treatment record from June 1998 indicating that high blood pressure had begun only seven years prior. On VA examination in June 2010, the examiner noted that elevated blood pressure readings reported in May 1972 were taken following "administration of Atropine (which accelerates heart rate and increases blood pressures) and a few minutes after leaving operating room where [the Veteran] underwent circumcision (surgical procedure in genital area which involves pain and stress)." With regard to elevated blood pressure seen in 1973 and 1976, the examiner opined that the first of these related to an acute infection with pain, and the second was the result of increased stress levels associated with an episode of acute neurosis. The VA examiner concluded that the Veteran's current hypertension was not related to the single instance of high blood pressure seen in May 1972, within one year of separation from service. In so concluding, the examiner noted that there was no indication of elevated blood pressure throughout service, and at separation his blood pressure was normal. The examiner also noted that on hospital admission in May 1972, prior to surgery, and on hospital discharge, the Veteran's blood pressure was normal. In reviewing the claims file, the examiner concluded that the evidence shows an onset of hypertension around 1993, and not before. Also of record is an undated note from the Veteran's private doctor indicating that the Veteran had been under his care since September 1996, but that the Veteran had been "suffering from high blood pressure since at least 1972." The private doctor did not give an explanation or underlying rational for his conclusion, nor did he indicate what, if any, records he reviewed in reaching this conclusion. A medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Accordingly, the Board finds the opinion of the private doctor, that the Veteran's blood pressure onset no later than 1972, to be of no probative value. Based on the foregoing, the Board finds that hypertension did not manifest in service or until more than 20 years after separation from service. While there are scattered, individual high blood pressure readings in the 1970s, the evidence shows that these were acute in nature, and not demonstrative of hypertension. The Veteran has also contended that hypertension is due to exposure to Agent Orange during service. The Veteran is competent to report signs, symptoms, and event which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). However, attributing hypertension to chemical exposure more then 20 years prior is well beyond the scope of lay observation. Thus the Veteran's assertions to that end are not competent and of no probative value in establishing a nexus to his current hypertension. Having reviewed the entire claims file, the Board finds that hypertension is not related to service, to include exposure to Agent Orange. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hypertension is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs