Citation Nr: 1342595	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO.  09-18 122	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for hypertension, to include as secondary to service-connected Meniere's disease.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel



INTRODUCTION

The Veteran served on active duty from October 1984 to April 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  Jurisdiction over the appeal has since been transferred to the RO in St. Petersburg, Florida.  

In May 2012 and May 2013, the Board remanded the appeal for additional development.  

In March 2013, the Board received a Veterans Health Administration (VHA) opinion.  Later that same month, the Board provided the Veteran and his representative with a copy of the VHA and an opportunity to respond.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The most probative evidence of record of record shows that the Veteran hypertension is not related to service, hypertension did not manifest itself to a compensable degree within one year of service and that hypertension was not caused or aggravated by his service-connected Meniere's disease.



CONCLUSION OF LAW

Hypertension was not incurred in or aggravated by military service, it may not be presumed to have been incurred in service, and it was not caused or aggravated by service-connected Meniere's disease.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 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, 3.326(a) (2013).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. § 5103(a).  

Initially, the Board finds that letters dated in May 2009 and May 2012 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess.  While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the December 2012 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters, the rating decision, the statement of the case, the supplemental statements of the case, and Board remand.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including his service treatment records and his records from the Bay-Pines and West Palm Beach VA Medical Centers in substantial compliance with the Board's remand instructions.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

In this regard, the post-remand record shows that in November 2013 the Social Security Administration (SSA) notified the AMC that it did not have any records of the Veteran.  Later that same month, the AMC notified the Veteran of this fact.  Therefore, the Board finds that adjudication of this claim may go forward without these records.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim").  

The record also shows that VA obtained opinions as to the origins of the Veteran's hypertension at a VA examination in June 2012 which along with the March 2013 VHA and the June 2013 and November 2013 addendums are adequate to adjudicate the claim and substantially comply with the Board's remand instructions because after a review of the record on appeal and/or after taking a detailed medical history from the claimant and/or after an examination, the examiners provided opinions as to the origins of his hypertension which opinions were based on citation to relevant evidence found in the claims file.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Stegall, supra; D'Aries, supra; Dyment, supra.

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the VBMS claims as well as in virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the Veteran's claim folder shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim

The Veteran and his representative contend that the appellant's current hypertension was either caused by his military service or caused or aggravated by his service-connected Meniere's disease.  It is also requested that the Veteran be afforded the benefit of the doubt. 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a) which disabilities includes hypertension.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including hypertension will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).  

In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Service connection may also be granted where disability is proximately due to or the result of already service-connected disability.  38 C.F.R. § 3.310.  Compensation is payable when service-connected disability has aggravated a non-service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

There was an amendment to the provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744-47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-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 non-service-connected disability before an award of service connection based on aggravation may be made.  This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation.  For this reason, 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 is more favorable to the claimant.

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

As to a current disability, a review of the post-service record documents the Veteran's complaints and treatment for hypertension.  See, for example, VA examination dated in June 2012; treatment records from Dr. Park dated from October 2008 to April 2009. 

As to service incurrence under 38 C.F.R. § 3.303(a), the Board notes that service treatment records show the Veteran's complaints and treatment for dizziness in May 1989 and April 1990 with a diagnosis of vertigo on both occasions and a diagnosis of elevated blood pressure on the later occasion.  Moreover, the Board notes the service treatment records on a number of occasions document the Veteran with elevated blood pressure readings including on one occasion in July 1990 when his blood pressure was 120/90.  Additionally, the Veteran reported a history of dizziness and high blood pressure at a January 1992 examination.  Furthermore, the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as observable symptoms of hypertension (i.e., dizziness) while on active duty as reported in statements to the RO, even when not documented in his medical records, because these symptoms come to him through his own senses.  See Davidson.  

However, the Veteran's service treatment records, including the April 1990 treatment records surrounding the one time diagnosis of elevated blood pressure and the January 1992 examination, are negative for a diagnosis of hypertension.  In fact, when examined in January 1992 it was opined that his history of dizziness was due to an ear infection that had resolved - not hypertension.  This medical opinion is not contradicted by any other medical opinion of record.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).

While the Veteran as a lay person is competent to report on his symptoms of hypertension because this requires only personal knowledge as it comes to him through his senses, the Board finds that he is not competent to provide a diagnosis of hypertension because such an opinion requires medical expertise which he does not have.  See Davidson.  Therefore, the Board finds more compelling the service treatment records, including the April 1990 service treatment records as well as the August 1988 and January 1992 examinations, which are negative for a diagnosis of hypertension, than any claim by the appellant that he had problems with hypertension while on active duty.  See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) ("[T]he Board may use silence in the [service medical records] as contradictory evidence only if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the [service medical records]." citing to Fed .R. Evid. 803(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded).).  

Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have hypertension while on active duty.  Accordingly, the Board finds that entitlement to service connection for hypertension must be denied based on in-service incurrence despite the elevated blood pressure readings seen while on active duty and despite the Veteran's claims regarding having problems with observable symptoms of this disability while on active duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

As to the presumptions found at 38 C.F.R. § 3.309(a), the Board notes that the record does not show the Veteran being diagnosed with hypertension in the first post-service year.  Accordingly, the Board finds that entitlement to service connection for hypertension must be denied on a presumptive basis.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309.  

As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from active duty in 1992 and first diagnosis of hypertension in 2008 to be evidence against finding continuity.  Put another way, the 16 year gap between the Veteran's discharge from active duty and the first evidence of the claimed disorder weighs against his claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).

In this regard, the Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with observable symptoms of hypertension, such as dizziness, since service.  See Davidson, supra.  The Board also acknowledges that the Veteran's representative is competent to give evidence about what he can see such as the claimant appearing to be dizzy.  Id.

However, upon review of the claims file, the Board finds that the Veteran's and his representative's assertions that the claimant has had his current hypertension since service are not credible.  In this regard, these lay claims are contrary to what is found in the service and post-service records.  In this regard, the Board finds the fact that the service treatment records surrounding the April 1990 finding of elevated blood pressure which did not lead to a diagnosis of hypertension and the negative January 1992 examination weighs heavily against the claims of continuity.  Post-service, the Board also finds the fact that at the August 1995 VA examination, which was held for, among other things, the purpose of ascertaining if he had hypertension due to his military service, the examiner did not diagnosis hypertension, also weighs heavily against the claims of continuity. 

In these circumstances, the Board gives more credence and weight to the negative service treatment records and examination as well as the negative August 1995 VA examination, than any claims by the Veteran and his representative to the contrary.  Therefore, entitlement to service connection for hypertension based on post-service continuity of symptomatology must be denied.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(b).

As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a competent and credible medical opinion finding a relationship between the Veteran's current hypertension and a disease or injury of service origin.  See 38 U.S.C.A. §§ 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  

In this regard, the June 2012 VA examiner opined, after specifically noting that the Veteran's service treatment records documented a problem with dizziness and increased blood pressure readings, that the most likely source of the Veteran's hypertension is his long standing super-morbid obesity.  See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) ("[T]here is no reasons or bases requirement imposed on examiners."); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (adequate medical opinion need not "explicitly lay out the examiner's journey from the facts to a conclusion," so long as its reasoning is discernible from reading the opinion as a whole).  Also in support of the conclusion that the Veteran's current hypertension was not caused by his military service, the examiner noted that the claimant's hypertension medication was started post-service by a private doctor because of borderline elevations.  

Likewise, the March 2013 VHA opined that the Veteran's history, which is significant for morbid obesity, hyperlipidemia on medication, and a positive family history of coronary artery disease, are significant risk factors that likely contribute to his hypertension.  

Similarly, in the June 2013 addendum the examiner opined that the Veteran's hypertension is not related to his military service because his longstanding super-morbid obesity is the most likely etiology of his hypertension, the claimant stated that he only had "borderline hypertension" before his post-service doctor started treatment, and there are no elevated blood pressure readings in "cprs."  

These opinions are not contradicted by any other medical opinion of record.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).    

As to the Veteran's and his representative's assertions that the claimant's hypertension was caused by his military service, the Board finds the June 2012 VA examination, March 2013 VHA medical opinion, and the June 2013 addendum more credible than these lay claims because physicians have more expertise.  See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data).  Moreover, the Board finds that diagnosing hypertension requires special medical training that neither the Veteran or his representative have and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation.  See Davidson, supra.  Accordingly, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disorder was caused by service is not competent evidence.  Jandreau. 

Therefore, the Board finds that the most probative evidence of record of record shows that the Veteran's current hypertension was not caused by his military service.  Accordingly, the Board finds that entitlement to service connection for hypertension is not warranted based on the initial documentation of the disability after service because the weight of the probative evidence is against finding a causal association or link between the post-service disorder and an established injury, disease, or event of service origin.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d).

As for service connection based on hypertension being secondary to service-connected Meniere's disease under 38 C.F.R. § 3.310, the record is negative for a competent and credible medical opinion finding a relationship between the Veteran's current hypertension and his service-connected Meniere's disease.  See 38 U.S.C.A. §§ 1110, 1131; Allen.  

In this regard, the June 2012 VA examiner opined that hypertension is less likely than not proximately due to or the result of his service-connected Meniere's disease because medical literature does not support that Meniere's causes hypertension.  The examiner also opined that, while it is true that hypertension can increase Meniere's symptoms, Meniere's disease does not affect blood pressure because all the symptoms are inner ear related.  Next, it was opined that while the Veteran's blood pressure might be affected by the stress of living with Meniere's disease, the condition itself does not have a direct effect on blood pressure.  

Likewise, the March 2013 VHA opined as follows: 

After reviewing the current literature there does not appear to be any evidence that Meniere's disease aggravates hypertension.  Upon review of the topic, 'stress may aggravate the vertigo and tinnitus of Meniere's disease and therefore avoidance or counseling may be advised' (source American Academy of Otolaryngology-Head and Neck Surgery Inc and the Complete Home Medical Guide published by the Columbia University College of Physician and Surgeons).  There are studies that have documented that patients with Meniere's disease tend to have more psychological disability than the normal population possibly including depression and or anxiety in reaction to their disease.

Similarly, in the June 2013 addendum the examiner opined that the Veteran's hypertension is not related to his service-connected Meniere's disease because the medical literature does not support that Meniere's disease causes hypertension.  

These opinions are not contradicted by any other medical opinion of record.  See Colvin.

As to the Veteran's and his representative's assertions that the claimant's hypertension was caused or aggravated by his service connected Meniere's disease, the Board finds the June 2012 VA examination, March 2013 VHA medical opinion, and the June 2013 addendum more credible than these lay claims because physicians have more expertise.  See Black.  The Board also finds that diagnosing hypertension requires special medical training that neither the Veteran or his representative have and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation.  See Davidson.  Accordingly, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disorder was caused or aggravated by a service-connected Meniere's disease  is not competent evidence.  Jandreau. 

Therefore, the Board finds that the most probative evidence of record of record does not show that the Veteran's hypertension was caused or aggravated by service-connected Meniere's disease.  See Allen.  Accordingly, the Board finds that entitlement to service connection for hypertension is not warranted on a secondary basis because the weight of the probative evidence of record is against finding a causal association or link between the disorder and an all ready service connected disability.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310.

Accordingly, the Board must conclude that entitlement to service connection for hypertension must be denied on a direct and secondary basis because the weight of the evidence is against the claim.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310.  

In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, as the most probative evidence of record is against the claim, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for hypertension is denied. 



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs