Citation Nr: 1540228 Decision Date: 09/18/15 Archive Date: 10/02/15 DOCKET NO. 10-09 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a sinus disability, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from July 1983 to March 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2008 and December 2008 rating decisions of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in May 2012. A transcript of that hearing has been associated with the claims file. The issues on the title page were previously remanded by the Board in April 2013 for additional development. The Board also granted service connection for a stomach disability, a right shoulder disability and headaches in that decision and, as these issues were granted in full, they are not in appellate status before the Board and need not be addressed further. This case was wholly processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing. FINDINGS OF FACT 1. The probative evidence of record reflects that the Veteran's currently diagnosed hypertension did not originate in service or for many years thereafter, is not related to any incident during active service and is not caused or aggravated by his service-connected PTSD. 2. Resolving all doubt in favor of the Veteran, his sinusitis originated during his active service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). 2. The criteria for the establishment of service connection for sinusitis are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2015). To the extent possible, VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2014), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The duty to notify was satisfied prior to the initial RO decision by way of a September 2007 letter sent to the Veteran. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes STRs, private and VA medical records, VA examinations and opinions and statements from the Veteran and his representative. The Board notes that the June 2013 VA examination of hypertension and accompanying opinion reflects that the examiner reviewed the Veteran's past medical history, documented his current medical condition, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes that the June 2013 medical examination of hypertension and opinion are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board points out that the Veteran is not alleging that his hypertension began during active service or was due to environmental exposures during his active service, rather, he only asserts that hypertension was caused by PTSD. See May 2012 Travel Board hearing transcript. Therefore, despite the absence of a discussion of exposure to environmental hazards in service, the June 2013 VA examination is wholly adequate. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. Rather, remanding this case to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained and that is obtainable. The Veteran has been accorded ample opportunity to present evidence and argument in support of this appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2015). Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Hypertension Service connection will also be presumed for certain chronic diseases, including hypertension, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R §§ 3.307, 3.309. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. § 1113. Additionally, as hypertension is defined as a chronic disease in 38 C.F.R. § 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and service connection for hypertension may be established by evidence of a continuity of symptomatology after service. See Walker v. Shinseki, 708 F.3d 1331, 1338-39. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for 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 progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The probative evidence of record demonstrates a current diagnosis of hypertension, however, there is no evidence of this disability during the Veteran's active service, no evidence indicating this disability is related to the Veteran's active service and no evidence indicating this disability was caused or aggravated by any service-connected disability, including service-connected PTSD. STRs are wholly absent of findings, treatment or a diagnosis of high blood pressure or hypertension. The post service medical evidence of record, including private and VA medical records and VA examinations, demonstrates the Veteran is diagnosed with hypertension, which was diagnosed many years after the Veteran's separation from active service. In particular, the Veteran's hypertension was initially noted in an April 2003 private medical record, diagnosed as diastolic hypertension. There is no probative medical evidence indicating the Veteran's hypertension is related to either his active service or to any service-connected disability. In a March 2006 private medical report, the private physician noted that the Veteran's hypertension was probably familial, as both his mother and sister also had hypertension. In the June 2013 VA examination, which the Board has found to be adequate, the examiner opined that it was less likely than not that the Veteran's hypertension had its clinical onset during service, within a year of service discharge or was related to any in service disease, event or injury. She explained that the Veteran's medical treatment records documented the onset of hypertension in 2004, approximately six years after his separation from active service, and that the Veteran did have a history of substance and alcohol usage and a strong family history of hypertension. She also found that the medical literature reflects that the risk factors for hypertension included genetic predisposition, male gender, weight gain, sodium intake and alcohol intake. The examiner also opined that it was less likely than not that the Veteran's hypertension was proximately due to, the result of, or aggravated by his service connected PTSD. In so finding, the examiner concluded that there was no evidence in the medical literature between PTSD and essential hypertension. She explained that elevated blood pressure readings can occur during periods of stress, however, transient blood pressure elevations are part of the body's natural reaction to stress and does not represent a chronic condition of hypertension. She noted that the Veteran had several established risk factors for the development of hypertension and his essential hypertension was most likely a result of these factors and not his military service or PTSD. The examiner pointed out that a review of blood pressure readings and pharmacy reports clearly indicated that the Veteran's blood pressure elevations were associated with non-adherence to prescribed antihypertensive therapy. She based her conclusions on a review of medical literature, the medical evidence of record and her own expertise, in addition to the examination of the Veteran and his reported history. Thus, there is no probative medical evidence indicating the Veteran's hypertension is related to either his active service or to any service-connected disability. The Veteran has not claimed that his hypertension began in service and continued since that time, rather, the Veteran argues that this condition is secondary to his service-connected PTSD. While a Veteran is competent to report lay observable events, treatment and symptoms of a disorder, he is not competent to diagnose or medically attribute any symptom to a current disorder or medically attribute any in-service symptom or incident to a current disorder. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In this case, he is not competent to specify that his hypertension is related to his service-connected PTSD, as such would constitute a medical conclusion, which he is not competent to make. See Jandreau, 492 F.3d at 1377 n.4; Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Thus, these assertions are not competent and are afforded no probative value. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the Veteran's claim for service connection for hypertension, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the Veteran's claim for service connection for hypertension is denied. Sinusitis After a careful review of the record, and resolving all doubt in favor of the Veteran, the Board has determined, based upon the probative evidence of record, that the Veteran's sinus problems, diagnosed as sinusitis, were incurred during his active service. Initially, the Board finds that, the Veteran's sinus problems, claimed as due to a chronic undiagnosed illness, are associated with known clinical diagnosis, namely sinusitis, and as such, are not qualifying chronic disabilities for the purposes of 38 C.F.R. § 3.317 and will be addressed on the basis of direct service connection. Despite the negative opinions rendered in the September 2008, January 2010 and June 2013 VA examinations, the Board finds that these examinations failed to address all the dates of treatment for sinus problems in service and after service and therefore the opinions were based on incomplete information. STRs reflect that the Veteran was periodically treated for sinus problems in service, including in sinusitis in October 1987, sinus cold in January 1990, and sinusitis in November 1995 and August 1997. The post service medical evidence of record, including private and VA medical records and VA examinations, demonstrates the Veteran is diagnosed with sinusitis and that the Veteran continued to be treated periodically for sinus problems since his active service. Private treatment reports reflect sinus problems were reported and treated in August 2003, diagnosed as sinus headache. A May 2004 VA treatment report reflects allergic sinus problems, which were diagnosed as allergic rhinitis. Private treatment reports thereafter reflect sinus headache was treated in September 2004 and the physician noted that he could not exclude an additive sinus component to headaches. Subsequent private treatment records reflect diagnoses of sinusitis in April 2006 and September 2006, sinus headaches and congestion in September 2006, and sinusitis in February 2007. Sinusitis was most recently noted in a September 2007 private computerized tomography (CT) report. In March 2009, the Veteran reported having sinus problems since his time in the Persian Gulf and was diagnosed with sinus allergies. The Board observes that, per his testimony in the May 2012 Travel Board hearing, the Veteran is competent to report that his sinus symptoms continued since his active service and these reports are credible as they are supported by the medical evidence of record reflecting continued treatment for sinus problems. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Baldwin v. West, 13 Vet. App. 1 (1999) (indicating the Board must additionally analyze the credibility of the evidence, so including the lay evidence, to in turn determine its ultimate probative value). Accordingly, the medical records and Veteran's testimony, taken together, places the evidence in relative equipoise. Thus, resolving all doubt in favor of the Veteran, the probative evidence of record demonstrates he has a current diagnosis of sinusitis that had its onset during his active service. Thus, service connection for sinusitis is warranted. 38 C.F.R. §§ 3.102, 3.303, (2015). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hypertension to include as secondary to service-connected PTSD, is denied. Service connection for sinusitis is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs