Citation Nr: 1340901 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 08-32 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas, that denied the benefit sought on appeal. The Veteran appeared at a Board hearing in May 2013 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is in the claims file and has been reviewed. In addition to his paper claims file, the Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. All records in the Virtual file were considered by the Appeals Management Center (AMC), in Washington, DC, while the case was on remand. The Board remanded the case to the AMC in September 2013 for additional development. FINDINGS OF FACT 1. The AMC completed the additional development directed in the September 2013 Board remand. 2. Hypertension did not have its clinical onset in active service, it is not otherwise causally related to active service; neither is it due to nor aggravated by the service-connected PTSD. CONCLUSION OF LAW The requirements for entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a), 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the VCAA, VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in July 2007 that provided information as to what evidence was required to substantiate the claim on both a direct and secondary basis, and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. The letter was time- and content-compliant. 38 C.F.R. § 3.159(b)(1); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. In this regard, the RO obtained the Veteran's service treatment records, VA outpatient records, and identified private records. The Veteran is in receipt of Social Security disability benefits. The RO also inquired of the Social Security Administration (SSA) for any records extant related to those benefits. The SSA informed the RO the related records were no longer available, as they had been destroyed. Further, the Board remanded the case for an examination after the Veteran asserted entitlement to service connection on a secondary basis. Neither the Veteran nor his representative asserts that there is additional evidence to be obtained or that VA failed to assist the Veteran with his claims. The United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the May 2013 hearing, the undersigned identified the issues and made certain that the Veteran's bases for his claims were accurately stated and documented. Further, the undersigned also held the record of the hearing open for 30 days so suggested evidence could be obtained and submitted. Neither the Veteran nor his representative as voiced any disagreement with how the hearing was conducted. Hence, the Bryant notice requirements were complied with. Id. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). As a result, the finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, the Board may address the merits of the appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the 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 Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service Connection The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that 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 suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is a showing of a resulting chronic condition listed in 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a) during service, or within the applicable presumptive period, then a showing of continuity of symptomatology after service may provide a basis for a finding of chronicity. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1131 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also 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). Analysis For VA purposes, hypertension is defined as diastolic blood pressure of predominantly 90mm or greater; or, isolated systolic hypertension where 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 7101 Note (1). Initially, the Veteran did not assert a specific basis for his claim of entitlement to service connection. There are no entries in the service treatment records related to complaints of or treatment for high blood pressure or elevated blood pressure readings. An entry in the service treatment records dated in January 1969 notes the Veteran complained of dizziness, lightheadedness, and problems staying on his feet. The Veteran's vitals were noted as: temperature, 98.6; Pulse, 68; Respiration, 24; and, blood pressure 110/96. Upon physical examination, the eyes constricted properly. A urinalysis was performed, and the Veteran was slightly dehydrated. He was administered 1000cc of fluid intravenously, and prescribed four salt tablets daily for two weeks. There are no further entries in the service treatment records that note an elevated blood pressure reading. Upon separation, objective examination showed blood pressure of 130/78 and the Veteran denied high blood pressure in a report of medical history completed at that time. The Veteran's vascular system, heart, lungs, and chest were assessed as normal. The chest X-ray was read as negative for abnormalities. He was deemed physically fit for separation from active service. Post-service, a private record entry of January 1973 related to the Veteran's low back disability reflects a blood pressure reading of 120/80. No complaints related to high blood pressure are indicated. In light of the above, the November 2007 rating decision denied entitlement to service connection, as the service treatment records contained no diagnosis of or treatment for high blood pressure, nor evidence that the disease manifested within one year of the separation from active service. At the hearing, however, the Veteran expressed the belief that his high blood pressure was due either to depression or his PTSD. Hence, the Board remanded for further development. Secondary Service Connection A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The evidence of record establishes Wallin elements 1 and 2. The Veteran is diagnosed with and treated for hypertension, and service connection is in effect for PTSD. The September 2013 Board decision denied entitlement to service connection for depression, as it was determined that the medical evidence of record showed the Veteran's primary pathology was PTSD rather than depression. Hence, the Board remanded the case for a medical opinion. The October 2013 examination report reflects the examiner conducted a review of the claims file as part of the examination. The examiner noted the medical records, and his recording of the Veteran's reported history, revealed an initial diagnosis of hypertension in 2007, for which he was placed on daily medication. The examiner opined there was less than a 50-percent probability that the Veteran's hypertension had its onset in active service, as he was diagnosed with the disease in 2007. The examiner opined further that there was less than a 50-percent probability that the hypertension was due to or aggravated by the service-connected PTSD. The examiner noted that while PTSD may increase episodic blood pressure, it will not result in sustained high blood pressure readings. The examiner noted a history of several high blood pressure readings in service, but the Board finds that this is contrary to the evidence of record. The Board acknowledges the lay contentions of the Veteran, as well as the fact that the he is considered competent to report the observable manifestations of his claimed disability. See 38 C.F.R. § 3.159(a)(2); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Hence, the Veteran is competent to report what he was told. The Board acknowledges further that the Veteran's report may not be summarily rejected solely because of the absence of contemporaneous medical documentation. See Buchanan v. Nicholson, 451 F.3d 1331, 1335-36 (2006); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). The totality of the evidence convinces the Board, however, that the Veteran's report to the examiner was unreliable and not credible. The Board has already set forth the contents of the service treatment records, and the fact the Veteran had normal blood pressure when he separated from active service and three years afterwards. He also denied high blood pressure at his separation examination. Further, the Veteran did not assert direct service connection at the hearing. He and his wife instead discussed a claimed link with either depression or PTSD. See Transcript, pp. 17-22. Where an examiner's observation or opinion is based on a patient's reported history, the opinion is no better than the accuracy or credibility of the history. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) citing Wilson v. Derwinski, 2 Vet. App. 614, 618 (1993). Hence, the Board attaches no weight to the examiner's notation of three to four in-service high blood pressure readings. The examiner did not otherwise opine that the service treatment records demonstrated hypertension in service. The Veteran himself is not competent to opine on the diagnosis or etiology of his disability. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.") Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), opining on any linkage between PTSD and hypertension falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer)." Hence, to the extent the Veteran may personally opine his hypertension is due to or aggravated by his PTSD, his opinion is not probative on the matter. See id.; 38 C.F.R. § 3.159(a)(1). The Board acknowledges the fact the Veteran's wife testified at the hearing that she has medical training. However, she did not provide any detailed rationale in support of her opinion that the hypertension is related to the service-connected PTSD. Therefore, her opinion carries little probative weight. Overall, the VA examiner's opinion, accompanied as it was by a rationale, is more probative. Thus, the totality of the evidence shows the Veteran's hypertension first manifested decades after his active service, and his service-connected PTSD did not cause or aggravate his hypertension. In light of all of the above, the Board is constrained to find the preponderance of the evidence is against the claim on both a presumptive, direct, and secondary basis. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a), 3.310. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs