Citation Nr: 1343162 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 09-36 333 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes and/or posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1965 to September 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision. In March 2013, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. In August 2013 the Board remanded this matter. At the Travel Board hearing, the Veteran raised a new claim seeking an increased rating for the skin disability. The agency of original jurisdiction (AOJ) has not adjudicated this new claim. Therefore the Board does not have jurisdiction in the matter, and it is referred to the AOJ for appropriate action. FINDING OF FACT Hypertension was not manifested in service or in the first postservice year, and is not shown to be related to service or to have been caused or aggravated by the Veteran's service-connected diabetes mellitus or PTSD. CONCLUSION OF LAW Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3, 307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim 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 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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 of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice letters were issued in January 2007, and March 2007. The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. The January 2007 and March 2007 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. VCAA notice provided in September 2013, pursuant to Board remand, addressed the requirements for substantiating a secondary service connection claim. The Veteran has had ample opportunity to respond/supplement the record, and is not prejudiced by any technical notice deficiency that may have occurred earlier in the process. VA's notice requirements in this matter are met. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in May 2009 and October 2013. Cumulatively, these examinations/opinions are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. At the Travel Board hearing in March 2013, the undersigned explained that what remained necessary to substantiate the Veteran's claim was evidence of a nexus between the Veteran's hypertension and his service/a service-connected disability, and that that is a medical question. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran was assisted at the hearing by his representative, and questioning by the representative and the Veteran's testimony reflect that they are aware of what remains necessary to substantiate his claim. In August 2013 the case was remanded to secure a medical opinion in this matter. The RO has substantially complied with the August 2013 remand instructions; a subsequent examination (with addendum to the report) produced an adequate medical opinion . See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of incurrence or aggravation of a disease or injury in-service; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include hypertension) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for hypertension). 38 U.S.C.A. §§ 1112 , 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of a current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; also see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after the aggravation occurred. The Veteran's claim was received at the RO on October 20, 2006, days after the effective date of the revision; therefore the revised regulation will be applied. The determination as to whether the legal requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his hypertension is related to service or in the alternative is secondary to his service-connected diabetes mellitus and/or PTSD. The Veteran's STRs do not show any complaints, treatment or diagnosis of hypertension. On May 1965 service induction examination his blood pressure at that time was 130/80. On August 1967 service separation examination, his heart and vascular system were normal on clinical evaluation; his blood pressure was 134/90. In 1965 and 1967 reports of medical history he did not endorse a history of high blood pressure. On July 1995 VA (Agent Orange) examination the Veteran's blood pressure was 110/70. The diagnosis, in pertinent part, was that the Veteran had had a cerebral vascular accident with right-sided upper and lower extremity residuals and no history of hypertension, diabetes mellitus or kidney disease. In May 2000 the Veteran was seen at the University of Illinois at Chicago hospital with complaints of low back pain. His blood pressure then was 134/74. A June 2000 echocardiogram report showed normal global left ventricular systolic function, diastolic dysfunction, and no significant valvular abnormality. August 2003 to December 2006 reports of outpatient treatment at the Rehabilitation Institute of Chicago note assessments of hypertension and show fluctuating blood pressure readings, with systolic pressures ranging from 120-150 and diastolic pressures ranging from 63 to 88. It was noted that that the veteran was on medication for hypertension. On May 2009 VA (diabetes mellitus) examination, it was noted that the Veteran had type 2 diabetes mellitus diagnosed in approximately 2003, and that hypertension was diagnosed in approximately the late 1990's.(and that he had not had a heart attack or stroke). Blood pressure was 120/70 on two readings, and 130/80 on a third reading. The diagnosis was hypertension, not due to diabetes mellitus or worsened by it. In December 2012 a VA medical provider stated (handwritten on VA Form 119 (Report of Contact)): "I have reviewed the c-file[.] It is less likely as not that the Veteran[']s chronic HTN has been proximately caused by his PTSD. There is no credible medical evidence that PTSD can cause chronic HTN." On October 2013 VA hypertension examination it was noted that the Veteran did not recall the date he his hypertension was diagnosed, but the examiner observed that review of the record suggested it was diagnosed between 2000 and 2003. The examiner opined that the Veteran's hypertension was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The examiner explained that there are only two blood pressure readings available in service medical reports: that on service entrance examination and that on separation. The examiner addressed the 134/90 reading on separation, noting that one diastolic blood pressure reading of 90 alone is insufficient for a diagnosis of hypertension. The examiner further noted that if the Veteran had hypertension in service, his blood pressure readings would be elevated on subsequent blood pressure recordings. The July 1995 blood pressure reading was 110/70 (first postservice blood pressure reading of record), and it is then noted that until that time the Veteran had no history of hypertension. There were several normal blood pressure readings in June 1995. The first note that mentions hypertension and treatment with medication was in August 2003. Hypertension may have been diagnosed between 2000 and 2003. Therefore hypertension was not incurred or aggravated during the Veteran's active duty service. Regarding secondary service connection, the examiner opined that hypertension is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected diabetes mellitus. The examiner explained that diabetes mellitus was diagnosed after hypertension, and therefore the hypertension was not caused by diabetes mellitus. The examiner also opined that the hypertension was not aggravated by diabetes mellitus as the Veteran's blood pressure was under control and his renal function was normal. Later in October 2013, the VA examiner opined further (based on review of the record) that it is not at least as likely as not that the Veteran's hypertension was due to or aggravated by service. The examiner explained that there was no clearly documented high blood pressure in service; that the first documentation of hypertension was in August 2003, many years after service; and that there were no risk factors for hypertension in service. The examiner opined further that it is not at least as likely as not that the Veteran's hypertension is due to or aggravated by his PTSD. The examiner explained that while it is well known that stress can temporarily elevate blood pressure in all individuals (the adrenaline "flight or fight response"), this is a normal response to catecholamine release and such temporary elevation does not cause a permanent elevation of the blood pressure. The examiner noted that he was not aware of any credible scientific literature that definitely concludes that PTSD causes permanent elevation of blood pressure. It is not in dispute that the Veteran has hypertension (as he receives treatment for such disability). However, hypertension was not manifested in service or in the first postservice year (a VA examiner has opined that a solitary diastolic reading of 90 on separation was not diagnostic of hypertension, and there is no competent medical evidence to the contrary). Consequently, service connection for hypertension on the basis that it became manifest in service and persisted (see 38 C.F.R. § 3.303(b)) or on a chronic disease presumptive basis under 38 U.S.C.A. § 1112 is not warranted. In the absence of onset in service and continuity since (or presumptive service connection), whether a current insidious disease process such as hypertension is related to [more than 40 years] remote service, or was caused or aggravated by a service connected disability, is a medical question beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, it requires competent medical evidence. The competent medical evidence in this case is predominantly against the Veteran's claim. Consisting of VA examiners' opinions it establishes (with explanation why) that hypertension was not manifested in and is not directly related to (there were no risk factors for hypertension in service) service. Furthermore, the hypertension was not caused or aggravated by the Veteran's diabetes or PTSD (as hypertension preceded the diabetes and was under good control with medication- weighing against any increase in baseline of the disability, and because while PTSD may cause acute elevations of blood pressure, there was no support in medical literature that it can cause a permanent increase in severity of hypertension). The October 2013 examiner, a medical professional, is competent to offer the opinion, expresses familiarity with the record, and provides adequate explanation of rationale, with citation to factual data and supporting medical literature (or lack thereof). Therefore, the opinion is probative evidence in this matter. Because there is no competent evidence to the contrary, it is persuasive. As the Veteran is a layperson, his own opinion in this matter is not competent evidence. He does not cite to supporting medical opinion, or medical literature, and his pointing to the single diastolic reading of 90 at separation was expressly addressed by the VA examiner, and rejected, with explanation (stated above). Accordingly, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's hypertension and either his service directly or his service-connected PTSD and diabetes, and against his claim. Therefore, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied. ORDER Service connection for hypertension, including as secondary to service-connected diabetes and PTSD is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs