Citation Nr: 1339169 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 09-20 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1986 to August 1989, and from January 2002 to July 2005. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for essential hypertension. In June 2011, the Board remanded this matter for additional development. Pursuant to the remand instructions, the Veteran was scheduled for a VA examination in July 2011; however, the Veteran failed to appear at the examination and has not provided good cause for this failure to report. The Board is satisfied that there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran had chronic symptoms of hypertension in service. 2. Symptoms that were later diagnosed as hypertension were continuous since service separation. CONCLUSION OF LAW The criteria for presumptive service connection for hypertension are met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.326(a) (2013). In August 2011 the RO scheduled the Veteran for a September 2011 VA examination to assist in determining the nature and etiology of his hypertension. A September 2011 document from the RO indicates that the Veteran failed to report to this examination; thus, this claim will be decided based on the evidence of record. 38 C.F.R. § 3.655(b) (2013). In the present case, the Board is granting the claim for service connection for hypertension, as presumptively incurred in service based on "chronic" symptoms of hypertension in service, under 38 C.F.R. § 3.303(b); therefore, the findings and medical nexus opinion that the VA examination would have generated are not necessary to decide this case. There is otherwise sufficient medical evidence of record (current diagnosis if hypertension) to decide this claim. This Board decision constitutes a full grant of the benefits sought on appeal, with no remaining question of law or fact to be decided; therefore, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Legal Authority In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by a veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2013). Service connection may 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 active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Hypertension is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. 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. 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 a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for 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, such as 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. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis of Service Connection for Hypertension The Veteran contends that currently diagnosed hypertension is related to service. Specifically, he asserts that symptoms of hypertension were chronic in service, and that he was diagnosed and treated for hypertension at a private medical center six months after separation from service. After a review of all the evidence, the Board finds that the Veteran has a current disability of hypertension. With regard to the requirement of a current disability, outpatient records from a VA treatment center show that the Veteran has been receiving treatment for currently diagnosed hypertension since October 2006, fifteen months after separation from service. The Board next finds that the evidence is in equipoise on the question of whether symptoms of hypertension were chronic in service. The Veteran's service treatment records show that he had elevated blood pressure on several occasions. A July 2004 service treatment record shows that he went to sick call complaining of knee pain, and his blood pressure was recorded at 149/91. Blood pressure was 130/84 in August 2004, and 130/84 in November 2004. Notably, a June 2005 service treatment record shows that the Veteran went to sick call complaining of high blood pressure and headaches. Blood pressure was recorded as 140/100. The record notes that the physician requested a 5-day blood pressure check. The service treatment records contain an incomplete weekly outpatient blood pressure readings form. The form indicates that the Veteran recorded his blood pressure on four consecutive days. He recorded readings of 138/100 and 140/100 on the first day; 145/95 on the second day; 148/92 on the third day; and 148/98 on the fourth day. The Veteran did not complete the form, there were no medical findings or follow-up visits to sick call in relation to the complaints of high blood pressure, and there is no record of a diagnosis of hypertension in service. Based on this evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that symptoms of hypertension were chronic in service, so the criteria for presumptive service connection at 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service are met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board further finds that symptoms of hypertension were continuous since service. The Veteran was diagnosed as having hypertension in October 2006, just fifteen months after service. The Veteran has also reported that he was diagnosed with hypertension by a private physician only six months after service. He is competent to report such a contemporaneous diagnosis by a doctor. See Jandreau, 492 F.3d 1372. While those private treatment records are unavailable, the Board finds that, given the pattern of elevated blood pressure readings in service, and the hypertension diagnosis fifteen months after service, the Veteran's account of receiving a private diagnosis six months after service is consistent with the other evidence of record. Pursuant to the June 2011 remand instructions, the RO attempted to obtain the Veteran's treatment records from the private medical center. The RO informed the Veteran that he must provide a signed authorization and consent form so the medical center could release his treatment records to the RO; however, he did not respond to the RO's requests. The Board does not ascribe much probative value to the Veteran's failure to return such authorization form as having a tendency to show the non-occurrence of such diagnosis, as the evidence in this case indicates that the Veteran has difficulty with PTSD symptoms, frequently misses appointments due to PTSD symptoms and his responsibilities as the primary caretaker of his younger children, and moved without leaving a forwarding address. Resolving reasonable doubt in the Veteran's favor, the Board finds that presumptive 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. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs