Citation Nr: 1418785 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 04-23 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to November 1964, and from November 1990 to April 1991. He also served in a reserve component of the military. By a decision entered in June 1994, the Board of Veterans Appeals (Board) disallowed the Veteran s claim for service connection for hypertension as not well grounded. In November 1997, the Board denied the Veteran s application to reopen the claim. The present matter comes to the Board on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St Petersburg, Florida that, in pertinent part, again declined to reopen the Veteran's claim for service connection for hypertension. By a VA Form 9 (Appeal to Board of Veterans Appeals) dated in June 2004, the Veteran requested a hearing at the RO before a Veterans Law Judge. However, he withdrew that request in August 2004. See 38 C.F.R. § 20.704(e). In a January 2007 decision, the Board denied the Veteran's appeal, finding therein that new and material evidence had not been received to reopen the previously disallowed claim for service connection claim for hypertension. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Barnett v Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Thereafter, the Veteran appealed the January 2007 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2007 brief, the VA General Counsel acknowledged that the Veteran had not received adequate notice under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106 475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126) of the information and evidence required to substantiate his claim to reopen, as outlined in the Court's decision in Kent v Nicholson 20 Vet. App. 1 (2006). By a memorandum decision dated in February 2008, the Court agreed with the analysis set out in VA General Counsel's brief, vacated the Board s decision, and remanded the case to the Board for readjudication consistent with the Court's decision. In September 2009 and March 2011, the Board remanded the case to the RO, via the Appeals Management Center AMC in Washington, D C, for additional development. In October 2011, the Board reopened the Veteran s claim and remanded it for further development and adjudication on the merits. The case was again remanded by the Board in December 2012. In May 2013, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) pursuant to 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901. In June 2013, the Board provided a copy of the VHA opinion to the Veteran and his representative, and informed them of their right to submit additional evidence or argument within 60 days. Responses were received in June and July 2013 together with a waiver of RO review of additional evidence. 38 C.F.R. § 20.1304(c). Thereafter, the case was remanded for a final time by the Board in October 2013. Following readjudication in a February 2014 supplemental statement of the case (SSOC), the Veteran responded that he had no additional evidence and waived RO review of additional evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The Veteran also has an electronic Virtual VA paperless claims file, and the evidence therein has been reviewed by the undersigned. FINDING OF FACT Hypertension clearly and unmistakably existed prior to service, and clearly and unmistakably was not aggravated during active service beyond the normal progress of the disease. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1153, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's 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; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a December 2011 letter advised the Veteran of the evidence and information necessary to substantiate the reopened claim for service connection adjudicated herein. This letter also advised the Veteran of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the Board recognizes that the December 2011 letter was not issued prior to initial adjudication, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of an SSOC could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Given the readjudication in multiple SSOCs following the December 2011 letter, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment records (STRs) and post-service treatment records have been obtained and considered, and the record reflects substantial compliance with the request to obtain such records in the prior Board remands. Stegall v. West, 11 Vet. App. 268 (1998) (standing for the proposition that the Board is required to insure compliance with the instructions of it remands). In this regard, as requested in the most recent October 2013 Board remand, the Veteran was provided a letter, dated later in that month, requesting that the Veteran sign enclosed releases authorizing the RO to obtain records of treatment by Dr. John Hood, Lawrence Porter, Karan Reddy, Francis Fahey. This letter also requested that the Veteran submit any other pertinent records that he might have and advised him that he could obtain and submit medical opinions with respect to the etiology of his hypertension. The Veteran did not provide the requested releases, and the undersigned notes that the duty to assist is not a "one way street," and that when, as in the instant case with respect to supplying the necessary releases for the records requested to be obtained in the most recent remand, it is the Veteran that has the "information that is essential in obtaining the putative evidence," the Veteran cannot "passively wait" for the assistance of the VA. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the undersigned find that no further development with respect to obtaining the private treatment reports referenced in the most recent remand is necessary. Moreover and as previously indicated, the Veteran himself responded to the most recent SSOC by indicating that he had no additional evidence to submit. The Veteran was also provided VA examinations and opinions, to include by a VHA medical expert as referenced in the Introduction, addressing the claim, and in their totality, the examinations and opinions rendered are adequate to decide the issue on appeal. In this regard, the clinicians who conducted the examinations and completed the opinions considered all of the pertinent evidence of record, to include the statements of the Veteran, and included complete rationale, relying on, and citing to, the records reviewed. Moreover, the clinicians offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Thus, the Board finds that VA has fully satisfied the duty to notify and assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Legal Criteria/Analysis 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. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases, such as cardiovascular diseases to include hypertension, which develop to a compensable degree (10 percent for cardiovascular diseases) within a prescribed period after discharge from service (one year for cardiovascular diseases), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases (such as cardiovascular diseases) listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111 . In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service. Wagner v. Principi, 370 F. 3d 1089, 1096 (2004). A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. However, aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In Wagner, the Federal Circuit described the framework for analyzing a claim involving 38 U.S.C.A. § 1111 in conjunction with the provisions of 38 U.S.C.A. § 1153 as follows: The effect of section 1111 on claims for service-connected disability thus may be summarized as follows. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any 'increase in disability [was] due to the natural progress' of the preexisting condition. Id. at 1096. In deciding whether a condition preexisted service, the Board must consider the Veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition. 38 C.F.R. § 3.304(b)(1), (2). The term "clear and unmistakable evidence," as used in 38 U.S.C.A. § 1111 has been defined as evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing the definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that it while it has reviewed all of the evidence of record, and 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) (VA must review the entire record, but does not have to discuss each piece of evidence). 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 reports from the March 1961 entrance examination prior to the Veteran's first period of active duty did not reflect hypertension, and blood pressure was recorded at that time at 130/80. The Veteran specifically denied a history of high blood pressure on a medical history provided in March 1961. Hypertension was not shown during the Veteran's first period of active duty, to include on the reports from the September 1964 separation examination, at which time blood pressure was recorded at 110/80. The medical history provided in September 1964 was also negative for hypertension. The clinical evidence dated prior to the Veteran's second period of active duty reflects evidence of hypertension, with blood pressure reading of 160/90 in March 1974, 144/98 in August 1977, and 148/56 in August 1977. In addition, reports from an April 1991 VA examination reflect a history of treatment for high blood pressure since 1972, and an October 1996 statement from a private examiner noted treatment for high blood pressure. 974 160/90 Aug 1977 144/98 Shortly prior to the Veteran's second period of active duty, a medical history collected in October 1990 reflected a history of hypertension since 1983 said to have been controlled by medication. A military retention examination at that time included a negative examination of the heart, although the Veteran's blood pressure was not recorded at that time. It was noted on the reports from this examination that the Veteran had hypertension that was well controlled by medication and that he was qualified for all, including foreign, duty. During the Veteran's second period of active duty, blood pressure was recorded at 129/72, 142/80, and 136/92 in December 1990; 132/94 and 128/82 in January 1991; 142/90 in February 1991; and 154/96 and 136/84 in March 1991. The March 1991 separation examination from the Veteran's second period of active duty reflected blood pressure of 156/92, and the examiner indicated that the Veteran's blood pressure was elevated. Following separation from the Veteran's second period of active duty, blood pressure was recorded at 140/100 in January 1992, 140/84 in April 1993, 150/94 in July 1993, 140/90 in March 1997, 142/88 in November 1997, and 159/76 in January 2002. Reports from a February 2012 VA examination noted that the Veteran was being treated with hypertension medication, and document a blood pressure reading obtained at this examination of 170/80. It was noted that blood pressure was 132/62 in December 2011 and 132/61 in December 2010. The examiner, after noting that the Veteran did not take his blood pressure medication on the date of the examination, stated that the Veteran had essential hypertension which was generally controlled. The examiner could not determine the etiology of the Veteran's hypertension, but found it less likely as not that hypertension was incurred in or caused by an in-service injury, event, or illness. As a rationale for this opinion, the examiner noted that the physical history/examination completed prior to the Veteran's second period of active duty noted a history of treatment for hypertension from 1983, with no evidence of elevated blood pressure during the Veteran's first period of active duty. A January 2013 addendum opinion from the VA physician who conducted the February 2012 VA examination, documented to have been preceded by a review of the claims file, resulted in the conclusion that the Veteran's hypertension clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond it natural progression by an in-service injury, event, or illness. As a rationale for this decision, the examiner referenced the history collected in conjunction with the October 1990 military retention examination of treatment for hypertension since 1983; the fact that he was treated with medication for hypertension at that time; and the fact that the blood pressure readings during service "indicate[d] fair control of his blood pressure." The physician noted that while the Veteran's blood pressure over the years had required more medication, "this is a common progression in patients with hypertension as they age." In conclusion, the examiner indicated that there was no evidence that the Veteran's military service aggravated his hypertension. The June 2013 VHA expert opinion, which listed blood pressure readings for the periods prior to, during, and after the Veteran's second period of active duty, found that there was "adequate documentation that [the Veteran] had pre-existing hypertension treated with multiple medications prior to [the Veteran's second period of active duty.]" The expert found that the blood pressure readings prior to the Veteran's second period of active duty "indicate a level similar to that noted at the end of his military service." He also noted that the record documented the need for additional medication for hypertension following the Veteran's second period of active duty, and concluded as follows: In summary, [i]t is not as likely as not that his condition increased in severity during this [the second period of active service] period of actively military duty. The natural history of hypertension is to increase in severity with age, increasing weight and additional medications as listed above. The readings in March 1991 are consistent with a temporary condition, not directly related to military service. Applying the pertinent legal criteria to the facts set forth above, while it is not clear if the October 1990 examination reports describe the type of pre-service clinical findings contemplated by Smith, supra, the Board will afford the Veteran the benefit of accepting that with respect to the Veteran's second period of service-which is the period of service at issue in the instant case-hypertension was not shown upon being "examined, accepted, and enrolled" for this period of active duty so as to trigger the presumption of soundness at 38 U.S.C.A. § 1111. As such, the matter for consideration is whether this presumption has been rebutted. Turning first to the "preexistence prong," the Board finds that there is clear and unmistakable evidence that the Veteran's hypertension existed prior to his second period of active duty. As support for this determination, attention is directed to the contemporaneous clinical evidence of hypertension prior to the Veteran's second period of active duty (and not during the first period of active duty); clinical history provided by the Veteran himself at entrance to the second period of active duty; the reference to pre-existing hypertension by the VA examiner following the February 2012 VA examination and the VHA medical expert in June 2013; and the specific conclusion in the January 2013 addendum opinion that hypertension clearly and unmistakably pre-existed service. In this regard, the opinions by the clinicians in 2012 and 2013 referenced above included clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Therefore, the Board accords them significant probative value. As to the "aggravation prong," the Board finds that there is clear and unmistakable evidence that the underlying disability associated with hypertension, in contrast to mere symptoms, that existed prior to the Veteran's second period of active duty did not increase in severity beyond the natural progression of the disease during this period of service. The most probative evidence to this determination is the January 2013 addendum opinion specifically finding that hypertension clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. Further negative evidence in this regard is the negative opinion rendered by this clinician in November 2012 and by the VHA medical expert in June 2013. Again, these opinions included clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Therefore, again, the Board accords these opinions significant probative value. The Board has considered the Veteran's contention that a relationship exists between his current hypertension and his second period of active duty. In this capacity, the Board finds that the Veteran is not competent to provide an opinion that the underlying pathology of his hypertension was aggravated by his second period of service, or is otherwise related to either period of active duty, as he does not have the requisite medical expertise to render such an opinion. See Woehlaert, supra. Specifically, the question of aggravation, or nexus to service otherwise, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Therefore, based on the negative medical opinions discussed above, the Board finds that there is clear and unmistakable evidence that the Veteran's hypertension did not permanently increase in severity beyond the natural progression in service. As such, the Board concludes that there is clear and unmistakable evidence that the Veteran's hypertension existed prior to service and was not aggravated by service. Consequently, the presumption of soundness has been rebutted and the Veteran's hypertension pre-existed his second period of active duty. Additionally, for the same reasons discussed above, the Board finds that, based on the competent and probative evidence of record, to specifically include the negative opinions set forth above, the Veteran's pre-existing hypertension was not aggravated by his military service. The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for hypertension is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs