Citation Nr: 1338790 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-11 674 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for cerebral stroke and residuals thereof. 3. Entitlement to service connection for a right leg disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to August 1978. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Regional Office (RO) in January 2007 and November 2008. The Board remanded the case for additional development in January 2012, and it has now been returned to the Board. The Veteran testified at a hearing before the undersigned Acting Veterans Law Judge in August 2011. The Virtual VA and VBMS folders have been reviewed. The issue of entitlement to service connection for a right leg disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Hypertension was not shown to be present in service or within one year after service, nor was it shown to have been caused or aggravated by a disease or injury in service. Hypertension was first diagnosed many years after service. 2. A cerebral stroke was not shown to be present in service or within one year after service, nor was it shown to have been caused or aggravated by a disease or injury in service. A cerebral stroke occurred decades after the Veteran's service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, nor may it be presumed to have occurred therein. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. A cerebral stroke and its residuals were not incurred in or aggravated by service, nor may they be presumed to have occurred therein. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In July 2005 the Veteran was sent a letter that explained how VA could assist the Veteran with obtaining evidence in support of his claims for service connection for hypertension and stroke. The letter also explained what the evidence needed to show in order to establish service connection for a claimed disability. In October 2005 the Veteran was sent another letter which explained how VA could help him obtain evidence in support of his claims. In March 2006 the Veteran was sent a letter that explained how VA assigns ratings and effective dates for service connected disabilities. All of these notices were provided prior to the initial adjudication of these claims by the RO in January 2007. VA also must make reasonable efforts to assist the claimant with 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. In connection with the current appeal, VA has of record evidence including a statement from a private physician, Social Security Administration (SSA) disability records which include various private treatment records, paper and electronic copies of VA treatment records, various lay statements which were submitted by the Veteran, and a transcript of the Veteran's testimony at the August 2011 hearing. While there is some indication that the Veteran received additional private medical care, he was requested to identify all treatment sources and provide appropriate releases for them in January 2012 but he did not respond. Therefore, no additional private treatment records could be obtained. However, the Board notes that some of these records are contained in the Veteran's SSA file. In this case, the Veteran's service treatment records (STRs), other than his enlistment examination, are unavailable through no fault of the Veteran. The Board acknowledges its heightened obligation to consider carefully the benefit of the doubt rule in cases where the Veteran's service treatment records are unavailable through no fault of the Veteran. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board acknowledges the Veteran's contention that he was treated at a hospital at Camp Pendleton and notes that hospital records are sometimes kept separately than other service treatment records. Attempts were made to obtain these records, but it was determined that these records do not exist or are otherwise unavailable and further attempts to obtain them would be futile. In any event, the claimed treatment pertained to the Veteran's right knee rather than his cardiovascular problems. This claim was remanded for further development by the Board in January 2012. A Veteran has a right to substantial compliance with the instructions that are set forth in a Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, this standard was met. The remand instructed that additional VA treatment records be obtained. Those records, to the extent that they were available, were subsequently associated with the claims file (including the electronic claims file). The remand also instructed that the Veteran be requested to identify all sources of private treatment and to provide appropriate authorizations. This was done in January 2012 but the Veteran did not respond. The remand instructed that additional attempts be made to obtain the Camp Pendleton medical records, to the extent that they exist. Records were requested from the National Personnel Records Center and from Camp Pendleton but no records were located. The Veteran was informed of this by a December 2012 letter. SSA disability records were obtained in accordance with remand instructions. VA examinations were also obtained. The examinations and opinions that dealt with the Veteran's cardiovascular conditions fully documented the Veteran's claimed disabilities and rationales were provided based on examination of the Veteran and a thorough review of the record. They also conformed to the requirements in the remand that the examiner consider and comment upon certain evidence. Accordingly, the Board finds the VA examinations are adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). As noted above, the Veteran was provided an opportunity to fully set forth his contentions during a hearing before the undersigned Acting Veterans Law Judge. Recently, the United States Court of Appeals for Veterans Claims (Court) held that during a hearing on appeal, a Veterans Law Judge has a duty to fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In the present case, the undersigned Acting Veterans Law Judge clearly set forth the three issues to be discussed during the August 2011 hearing. The undersigned Acting Veterans Law Judge sought to identify pertinent evidence not currently associated with the claims folder and elicited further information as to the dates and locations of treatment when appropriate. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim. Furthermore, any defects in the Acting Veterans Law Judge's duties during the August 2011 hearing were remedied by the subsequent January 2012 remand requesting additional treatment records, Social Security Administration records and VA examinations. As such, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board finds that with respect to the claims for service connection for hypertension and cerebral stroke, the requirements of the VCAA were met and there was substantial compliance with the evidentiary development required by the January 2012 remand. Service connection The Veteran contends that his hypertension, and a resulting stroke, were incurred in service. The Veteran contends that the headaches that he experienced in and shortly after service were early signs of hypertension. He testified that he had headaches since service at his August 2011 hearing. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases which are listed in 38 C.F.R. § 3.309, including hypertension and cerebral stroke, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In most cases, establishing a nexus to service requires medical evidence. However, in the case of the chronic diseases set forth in 38 C.F.R. § 3.309, the requisite nexus may also be provided by evidence of continuity of symptoms. Walker v. Shinseki, 708 F.3d 1331 (2013). As previously stated, the Veteran contends that headaches he had in and shortly after service were early signs of hypertension. He did not testify to or otherwise identify any other reason why he believed that his hypertension and stroke were related to service. His mother and his wife wrote statements that the Veteran complained of headaches. Private medical records show that the Veteran had a stroke in May 2005. A letter from one of his doctors related that the Veteran had a stroke in May 2006 and that he was unable to determine whether this was related to the Veteran's military service because the doctor was unaware of the Veteran's service history. VA treatment records show treatment for hypertension and residuals of stroke. Private treatment records also show treatment for a stroke in May 2005 and thereafter for residuals of a stroke. A hypertension diagnosis first appears in VA treatment records in September 2004. A June 2005 treatment note gives a history that the Veteran's May 2005 stroke occurred after a drug overdose. As such the Veteran clearly has current disabilities. The Veteran is also competent and credible in reporting his history of headaches during service. Accordingly, the only question is whether the current hypertension and stroke are related to the history of headaches during service. The Veteran had off and on treatment from VA since the 1970s. Significantly, hypertension means persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90. Dorland's Illustrated Medical Dictionary at 889 (30th ed. 2003). Additionally, regulations indicate that for VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101. Blood pressures under these thresholds were noted at times including March 1979, October 1979, February 1991, August 1995, November 1995, and August 2003. Elevated blood pressure was noted in October 1987 when the Veteran came to a VA hospital in an intoxicated state. However, as previously noted blood pressures were normal on various occasions before and after October 1987. In any event, this first documented instance of high blood pressure was approximately 9 years after service. Hypertension was not then diagnosed although the Veteran was hospitalized for alcohol detoxification at the time. High blood pressure was diagnosed in or around September 2004. A VA examination with opinion was obtained in February 2012. The examiner noted the Veteran's history of headaches during service, hypertension diagnosed in 2004, and stroke with resultant right sided weakness in 2005. The examiner indicated that he reviewed the claims file in conjunction with preparation of the examination report with opinion. They examiner opined that it was less likely than not that the Veteran's hypertension and stroke were incurred in service or due to any event in service. While the Veteran claimed to have headaches in service, there was no record of hypertension. Hypertension was first diagnosed in 2004 and the Veteran had a stroke in 2005 caused hypertension, high cholesterol, and smoking. The examiner explained that if the Veteran had hypertension in service and it was missed he could not have had it undiagnosed until 2004 since he received medical care over the years for other conditions. Moreover, his hypertension is mild and well controlled. Untreated hypertension from 1977 to 2004 would have caused major complications such as cardiovascular disease or stroke a long time ago. The evidence does not support the Veteran's claim that his hypertension and resultant stroke were related to service. Although there are no records of blood pressure readings in service due to the unavailability of the Veteran's service treatment records, normal blood pressures were recorded on multiple instances after service when the Veteran sought treatment for other conditions. Hypertension was not diagnosed until 2004, which is more than 25 years after service, and well outside the presumptive period. Moreover, the VA examiner specifically considered the lay history of headaches and opined that the Veteran's hypertension could not have gone undiagnosed since service because the Veteran was treated by medical providers for other conditions and because such a long history of hypertension would have caused complications prior to 2004. The Board acknowledges the Veteran's opinion that his headaches in and shortly after service were signs of hypertension. While the Veteran is competent to state that he experienced headaches, and this was confirmed by his family members, he is not competent to report that these headaches represented early signs of hypertension or his stroke. As opinion as to the cause of hypertension and stroke are complex medical questions that involve consideration of risk factors, symptoms and knowledge of vascular system and would involve interpretation of clinical tests to determine the cause. See e.g. The Merck Manual, §7 and 211, 604-606, 1789-92 (18th ed. 2006)(explaining primary versus secondary hypertension, noting different risk factors, and discussing types of tests that can be performed in the work-up of a patient with hypertension and explaining the types of strokes and the different symptoms they present with along with the risks factors and types of clinical testing that can be performed to determine the presence and causes of strokes); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). Furthermore, the Veteran does not fall within one of the exceptions noted in Jandreau as he is not competent to establish a diagnosis and is not reporting a diagnosis that was previously provided. To the extent he claims to be reporting a symptom that supported his subsequent diagnosis, this is outweighed by the objective evidence of normal blood pressure readings after service in 1979 and at later times and the opinion of the VA examiner, who has specialized expertise in determining the etiology of medical problems such as hypertension and stroke and who provided a well-reasoned rationale for his opinion that hypertension and stroke did not occur in service and were unrelated to service. The Board has considered the benefit of the doubt rule. However, the weight of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, service connection for hypertension and cerebral stroke and the residuals thereof is denied. ORDER Service connection for hypertension is denied. Service connection for cerebral stroke and residuals thereof is denied. REMAND Further development is necessary with regard to the Veteran's claim that he sustained a right leg injury in service and currently has a resulting right leg disability. The Veteran testified at his August 2011 hearing that he injured his right leg when he fell on a branch or stone during service and had right leg pain since that time. He has also related this history to VA healthcare providers. His mother submitted a statement that the Veteran complained of right leg pain since service. The Veteran was afforded a VA examination with opinion in February 2012. However, the opinion is inadequate for rating purposes as it currently stands. First, it is unclear whether the examiner determined that the Veteran actually has any current right leg disorder. While the examiner gives an ICD code for the leg injury, suggesting that some type of disorder exists, the diagnosis is stated only as "right lower part of leg." While this describes the location of the claimed injury, it does not indicate whether a diagnosable right leg condition currently exists or what the nature of any such malady is. The importance of determining whether there is an actual right leg disorder is underscored by the normal examination findings with respect to stability and range of motion. Additionally, the rationale for the examiner's opinion that the right leg condition was not incurred in service is inadequate. The examiner's sole reason for finding that the Veteran's right leg disorder (if it exists) was less likely than not due to service was because there was no documentation of any injury in the service medical records. However, it is not always necessary for a condition to be noted in the service treatment records in order to establish service connection especially where, as here, the service treatment records are unavailable. Lay evidence may also be used to ascertain that a claimed in service injury or other event occurred. In this case, the Veteran testified that he hurt his leg in service and submitted a statement from his mother to that effect. This is what he also has told medical providers. The examiner's report indicates that he considered the Veteran's story "plausible" in light of the medical findings. A new opinion is required that is based on evidence other than the lack of documentation of an injury in the Veteran's service treatment records. Thus, the Board concludes that it is necessary to obtain an addendum opinion addressing these issues. Accordingly, the case is REMANDED for the following action: 1. Contact the examiner who provided the February 2012 examination and opinion or, if he is unavailable, a similarly situated examiner, and obtain an addendum opinion. In this opinion, the examiner should: (A) Clarify whether the Veteran has any current right leg disorder. If a right leg disorder currently exists, it should be specifically identified. (B) if a current right leg disorder is diagnosed, provide another opinion as to whether it is at least as likely as not (at least 50 percent likely) that any such disorder is due to a disease or injury in service, including the claimed injury from a stone or branch. It is insufficient to state that there is no documentation of this occurrence in the service treatment records. The examiner is instructed that the occurrence of the claimed injury may be established by lay evidence such as the hearing testimony of the Veteran. If the examiner determines that exam findings are inconsistent with the history provided by the Veteran, he should explain why this is the case in detail. Otherwise, he should accept the Veteran's statements that he sustained an injury to his right lower leg in service. The examiner should provide a complete rationale for his conclusions in the addendum report. If the examiner is unable to provide the requested information and/or opinion without resort to undue speculation, he should explain why this is the case. 2. After completion of the above development, the Veteran's claim should be re-adjudicated. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Thereafter, if applicable, the case should be returned to the Board. 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. 2012). ______________________________________________ H.L. SEESEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs