Citation Nr: 1342090 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 08-08 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AS HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to June 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In November 2008, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing at the RO located in North Little Rock, Arkansas. A transcript of the proceeding has been associated with the claims file. By way of background, an unappealed June 1977 rating decision denied entitlement to service connection for hypertension, which decision became final. In May 2006, the Veteran filed an application to reopen her claim. In January 2009, the Board remanded the Veteran's claim for further development. A December 2011 Board decision granted the Veteran's application to reopen her claim, and remanded the claim again for further development. Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's hypertension is etiologically related to a disease, injury, or event in service, or is due to or aggravated by the service-connected headaches disability; hypertension is not shown within one year of separation from active service. CONCLUSION OF LAW Service connection for hypertension is not warranted, nor may it be presumed. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection for hypertension, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a VCAA letter dated May 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). The letter informed the Veteran of what information or evidence was needed to support her claim, including claims for secondary service connection, what types of information and evidence the Veteran was responsible for providing, and which evidence VA would obtain. The notice letters also explained how VA assigns disability ratings and effective dates. See Dingess, supra. Because the Veteran's application to reopen her claim was previously granted by way of the December 2011 Board decision, whether the VCAA letters provided notice regarding "new and material evidence" is moot. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file. The Veteran has not identified any additional relevant treatment records for VA to obtain. In this regard, the Board acknowledges that the Veteran testified at the Board hearing that she was treated at the Chicago VA medical center between 1963 and the early 1970s. In January 2009, the Board remanded the Veteran's claim so that any outstanding VA treatment records dated since 1963 could be obtained from the Chicago VA medical center. Pursuant to the Board's remand directive, in March 2009, the AMC requested copies of the Veteran's records from that facility. Later in March 2009, the Chicago VA medical center replied that all available records had already been provided. The Veteran was provided notice regarding the unavailability of those records in December 2009 pursuant to 38 C.F.R. § 3.159(e). In addition, the Board directed in its January 2009 remand that any outstanding VA treatment records dated since September 2006 be associated with the claims file. In December 2011, the Board directed that all recent VA treatment records dated since August 2009 be associated with the claims file. Pursuant to the Board's remand directives, the Veteran's more recent VA treatment records dated since September 2006 and through May 2012 have been associated with the claims file. Therefore, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In December 2011, the Board remanded the Veteran's claim so that she could be provided with a VA examination. The Veteran was afforded a VA examination in February 2012, which examiner addressed all the questions posed by the Board in its December 2011 remand. Therefore, the Board finds that there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the February 2012 VA examination report is adequate upon which to base a decision with regard to the Veteran's claim. The February 2012 VA examiner reviewed the claims file, interviewed the Veteran, and examined her, and provided an opinion with an adequate supporting rationale. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which she presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully identified the issues on appeal during the hearing and the Veteran provided testimony concerning the claimed onset of hypertension in service or as secondary to the service-connected headaches. During the course of the hearing, information was obtained concerning the Veteran's treatment history. Indeed, in part based on the information elicited from the Veteran during the hearing, the Board remanded the Veteran's claim for additional development, including a VA examination. Significantly, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 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) (2013). To establish service connection, the evidence generally 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). For veterans who served on active duty continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, service connection may be awarded on a presumptive basis for certain listed "chronic" diseases in 38 C.F.R. § 3.309(a), including hypertension, that manifest to a compensable degree within a prescribed time period, which period is one year of discharge from active duty in the case of hypertension. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). A veteran may also establish entitlement to service connection for a listed "chronic" disease in 38 C.F.R. § 3.309(a) by demonstrating continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir.2013). Continuity of symptomatology contemplates evidence of continuous symptoms after service. See Savage v. Gober, 10 Vet.App. 488, 495-96 (1997). A "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected." 38 C.F.R. § 3.310(a) (2013). "Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made. Allen v. Brown, 7 Vet. App. 439. This had not been VA's practice, which suggests that the recent changes amount to a substantial change. See Allen, 7 Vet. App. at 447-449. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the Veteran. VA has set the threshold for establishing a diagnosis of hypertension at a diastolic blood pressure reading of predominantly 90 or greater, and it has set the threshold for establishing a diagnosis of isolated systolic hypertension at a systolic blood pressure reading of predominantly 160 or greater with a diastolic blood pressure reading of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101 Note 1 (2013). Blood pressure readings must have been taken "two or more times on at least three different days" to confirm the diagnosis. Id. The Veteran served on active duty from September 1960 to June 1963. She claims that he has hypertension that had its onset in service. In the alternative, the Veteran claims that her hypertension is secondary to her service-connected headaches. The Veteran's service treatment records are silent as to any mention of high blood pressure or hypertension. A May 1963 separation examination report reflects that her blood pressure reading at separation from service was 120/70. The Veteran was discharged from service in June 1963. Within one year of the Veteran's discharge from active duty, there is no evidence of any elevated blood pressure readings or diagnosed hypertension. Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.309(a) for a chronic disease are not for application. Almost 10 years post-service, a February 1973 private treatment record from St. Vincent Infirmary reflects that the Veteran presented complaining of headaches and dizzy spells. It was noted that she had been told that at a family planning clinic that she had high or elevated blood pressure and it needed to be checked. Her blood pressure readings were 140/110 and 150/108 sitting, and 138/110 and 140/110 standing. A diagnosis of headaches was recorded, with a plan for a low salt diet. Although no diagnosis of hypertension was recorded, the Veteran was prescribed Esidrex. A March 1973 follow-up record from St. Vincent's reflects that her blood pressure reading was 130/86, a diagnosis of "blood pressure under control" was recorded, and a plan was noted for her to continue taking the Esidrex. An April 1977 VA examination report reflects that the Veteran's blood pressure readings were 166/104, 170/104, 168/100, 168/100, and 166/110. A diagnosis of hypertensive vascular disease was recorded, but no etiological opinion was provided. Subsequent VA treatment records dated since 1988 reflect that the Veteran has been followed at the Little Rock VA medical center for hypertension. See, e.g., May 1978, October 1988, June 1998, August 2009. None of these treatment records, however, include any etiological opinions linking the Veteran's hypertension to her active service or to her service-connected headaches. A February 2012 VA examination report reflects that the Veteran reported that her hypertension began during boot camp. The examiner noted that the first record of diagnosed hypertension in the claims file was in 1977. Three recent blood pressure readings were noted as 190/104, 187/85, and 180/86. The examiner recorded a diagnosis of hypertension, and opined that it is less likely as not that the Veteran's hypertension is related to her active service. The examiner reasoned that there was no evidence of episodes of hypertension prior to 1977 (14 years post-service). The examiner also opined that it is less likely as not that the Veteran's hypertension is caused or aggravated by her service-connected headaches. The examiner reasoned that there was no known causative relationship in medical literature between migraine headaches and essential hypertension, and that although blood pressure may temporarily rise during a headache, there is no evidence in medical literature of any aggravation beyond the natural progression of the disease of hypertension due to migraine headaches. The Board finds the above opinion of the February 2012 VA examiner to be the most probative evidence of record as to whether the Veteran's hypertension is related to her active service or was caused or aggravated by her service-connected headaches. The February 2012 VA examiner based his opinions on a review of the entire claims file, and provided rationales for his conclusions. The Board adds that there is no medical opinion of record that contradicts the opinions of the February 2012 VA examiner. The Board acknowledges that the Veteran has reported experiencing headaches since service, and that she asserts that her service-connected headaches caused her hypertension. The Board finds, however, that the Veteran is not shown to have the medical education, training, or experience to opine as to whether her headaches are a symptom of her hypertension, nor as to whether her headaches caused or aggravated her hypertension, which would require medical expertise. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Jeandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also acknowledges that the Veteran testified at the Board hearing in November 2008 that during service she was told that her blood pressure was "out of control," but that she did not believe that it was ever written down. At the February 2012 VA examination, the Veteran implied that any service treatment records relating to hypertension during her active service were destroyed in a fire. The Board finds her lay history regarding being told in service that she had blood pressure problems or any implied treatment for such to be not credible, as her account changed from testifying that blood pressure problems were never written down, to that they were burned down, yet the claims file contains service treatment records, including records from her service in Bainbridge, Maryland, none of which include any indication of any concern regarding her blood pressure, and which records show her blood pressure was 120/70 at separation from service. Moreover, a June 1997 VA treatment record indicates that the Veteran reported to that clinician a history of hypertension since 1972, not since service. The Board emphasizes that this case is distinguishable from Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006) because this is not a case where there is a lack of medical evidence altogether; rather, there are contemporaneous service treatment records in the claims file, but they simply do not reflect that her blood pressure was of any concern. Therefore, the Board ultimately finds the competent medical opinions of the February 2012 VA examiner to have more probative value as to the etiology of the Veteran's hypertension. In summary, the Board finds that the preponderance of the evidence is against granting service connection for hypertension, and the benefit-of-the-doubt rule is not for application; there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hypertension is denied. ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs