Citation Nr: 1605791 Decision Date: 02/16/16 Archive Date: 03/01/16 DOCKET NO. 08-32 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for hypertension, to include as secondary to the service-connected arrhythmia heart murmur with syncope/paroxysmal atrial fibrillation, status post pacemaker placement. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied the claims of service connection for a heart condition and hypertension. During the pendency of the appeal, the Veteran relocated to West Virginia, and jurisdiction of his claims file was therefore transferred to the RO in Huntington, West Virginia. In November 2010, the Veteran and his wife testified at a hearing before the undersigned Acting Veterans Law Judge at the RO. A copy of the transcript is of record. The Board remanded the Veteran's claim in May 2011 for additional development of the record. Following the remand, service connection for arrhythmia heart murmur with syncope was granted pursuant to a November 2012 rating decision issued by the Appeals Management Center (AMC) in Washington, DC. As such, the issue of service connection for a heart condition is no longer on appeal to the Board. In a March 2014 rating decision, the RO granted service connection for status post implantable pacemaker for paroxysmal atrial fibrillation with syncope (previously rated as arrhythmia heart murmur with syncope) and assigned a temporary 100 percent evaluation from March 9, 2013 to June 1, 2013, followed by a 30 percent rating effective from June 1, 2013. In August 2014, the Board once again remanded the Veteran's claim of service connection for hypertension for additional development of the record. Upon completion of the requested development, the RO issued a Supplemental Statement of the Case (SSOC) in November 2014 and returned the case to the Board for appellate disposition. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's essential hypertension had its onset many years following discharge from service, is not otherwise related to service, and is not proximately due to or aggravated by the service-connected arrhythmia heart murmur/atrial fibrillation with syncope status post implanted pacemaker. CONCLUSION OF LAW Essential hypertension was not incurred in service and may not be presumed to have been incurred therein; and, it is not secondary to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a November 2007 letter that was provided before the February 2008 initial adjudication of the claim. The letter notified the Veteran of the information and evidence needed to substantiate his service connection claim(s). The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, VA satisfied its duty to notify in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All relevant facts have been properly developed, and all available evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained. VA has associated with the record the Veteran's VA outpatient treatment and private treatment records identified by the Veteran as pertinent to his claim. He was also afforded two VA examinations, one in June 2011 and the other in November 2014. These examinations are adequate because the examiners discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Also, as noted above, the Veteran testified at a travel Board hearing at the RO in November 2010. The Acting Veterans Law Judge (AVLJ) who conducted the hearing noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the appellant's contentions and treatment history. The appellant provided testimony in support of his claim and expressed his contentions clearly. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Furthermore, the agency of original jurisdiction (AOJ) substantially complied with the May 2011 and August 2014 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA's duties to notify and assist have been met. II. Service Connection The Veteran seeks service connection for hypertension. He asserts that his hypertension is secondary to his service-connected atrial fibrillation arrhythmia heart murmur with syncope, status post pacemaker placement (hereinafter referred to as "heart condition"). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, hypertension will be presumed to have been incurred in or aggravated by service if manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2015). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2014); 38 C.F.R. § 3.303(a) (2015); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also 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). Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Under VA regulation, hypertension must be confirmed by readings taken two or more times on at least three different days. Regulation also clarifies that the term hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2015). A review of the Veteran's service treatment records (STRs) is negative for complaints or findings of hypertension, and it is undisputed that the Veteran's hypertension was not first diagnosed in service or within the first post-service year. Further, the Veteran does not contend that he had consistently elevated blood pressure readings until many years following discharge from service. An April 1970 hospital report does show a single elevated blood pressure reading of 140/90 on admission to the hospital for treatment for first and second degree burns of the hands and feet. At the time of the elevated reading, the Veteran was in a lot of pain due to the burns, and there is no indication in the corresponding medical treatment records that the Veteran had hypertension at that time. Moreover, such elevated blood pressure is not consistently shown during service. Furthermore, the Veteran's blood pressure reading on his October 1970 discharge examination is 124/80. The discharge examination reflects that the Veteran had a Grade I/IV systolic ejection murmur. Further cardiac workup in October 1970 revealed a slightly irregular pulse and rate of 70, but EKG was normal. No organic heart disease was found, and there was no mention of elevated blood pressure or hypertension at that time. Private treatment records from 2006 show a current diagnosis of hypertension. A July 2006 memorandum from JAF, MD reveals that the Veteran's blood pressure medication was being increased because his blood pressure readings continued to be elevated. According to the memorandum, the examiner saw no need for a pacemaker unless the Veteran subsequently required the addition of a beta-blockade to his anti-hypertensive medication regimen. Other private treatment records from GC Family Health show elevated blood pressure readings in June 2002, December 2003, February 2004, April 2005, July 2005, and April 2006. The Veteran believes that his hypertension is secondary to his service-connected heart condition. At his November 2010 hearing before the undersigned, he testified that his hypertension was first diagnosed 15 to 20 years earlier (the early 1990's). The Veteran also testified that after his heart condition was first discovered in service, it progressed throughout the years, first with an irregular heartbeat, then a slow heartbeat, and then he developed high blood pressure, so he feels it is all intertwined. The Veteran was afforded a VA examination in June 2011. According to the examiner, the Veteran's medical chart showed intermittent elevated blood pressure since 1993. The examiner noted the Veteran's heart history and indicated that he did not have congestive heart failure or pulmonary hypertension. On examination, the Veteran's three blood pressure readings were 174/104, 156/102, and 140/90. The diagnosis was hypertension, hypertensive heart disease of longstanding etiology, likely essential hypertension. The examiner opined that the Veteran's hypertension (hypertensive heart disease) is less likely as not caused by or a result of service, finding that it did not have its onset in service and is not otherwise medically related to service including to his service-connected heart disorder. The examiner based the opinion on a review of the medical evidence of record at the time of discharge which indicated that his murmur at that time appeared to be innocent and not related to his hypertension. The examiner also opined, based on medical literature, that the sinus arrhythmia noted on exit examination is likewise not related to the Veteran's hypertension, pointing out that the medical literature shows that a decreased respiratory sinus arrhythmia may be more related to arterial stiffening than hypertension, and the Veteran's leftward axis during service was felt to be within normal limits at that time. While the above June 2011 examiner provided a complete and adequate rationale for the opinion that the Veteran's hypertension did not have its onset during service and was not otherwise related to service, the examiner did not consider whether the Veteran's hypertension was aggravated by the Veteran's service-connected heart condition of arrhythmia heart murmur with syncope. As such, the Veteran was afforded another examination in November 2014. Meanwhile, however, in between the two VA examinations, additional private treatment records were obtained which show that the Veteran underwent a permanent pacemaker placement in March 2013. Those hospital records show that the Veteran had sinus bradycardia with a previous history of syncopal episodes and elevated blood pressure. The admission report shows that the Veteran was not on beta blocker medication at that time to suggest that his bradycardia was due to a beta blocker. A December 2013 [pacemaker] device check report indicates that the Veteran's hypertension is benign. A diagnosis of paroxysmal atrial fibrillation (PAF) was noted on a December 2013 VA ischemic heart disease disability benefits questionnaire. In a March 2014 rating decision, the RO recharacterized the Veteran's service-connected heart disability to include the PAF. The November 2014 examination report indicates that the examiner reviewed the Veteran's medical record and physically examined the Veteran. Upon an extensive summarization of all of the medical evidence of record, including the more recent 2013 records regarding the pacemaker placement, the examiner opined that the Veteran's hypertension was less likely than not proximately due to or the result of the Veteran's service-connected heart condition. To support this opinion, the examiner cited to medical literature which does not support hypertension being caused by or aggravated by sinus arrhythmia or heart murmur with syncope. This medical literature provides possible etiologies for hypertension, but indicates that the exact causes of high blood pressure are not known. Several risk factors are listed, including smoking, being overweight, lack of physical activity, too much salt in the diet, too much alcohol consumption, stress, older age, genetics, family history of high blood pressure, chronic kidney disease, and adrenal and thyroid disorders. Another article cited by the examiner notes that the pathogenesis of essential hypertension is multifactorial and highly complex. Multiple factors modulate blood pressure for adequate tissue perfusion, including humoral mediators, vascular reactivity, circulating blood volume, vascular caliber, blood viscosity, cardiac output, blood vessel elasticity, and neural stimulation. Finally, according to a cited Mayo Clinic article, for most adults, there is no identifiable cause of essential high blood pressure and it tends to develop gradually over many years. Some people have high blood pressure caused by an underlying condition, called secondary hypertension, and it tends to appear suddenly and cause higher blood pressure than does primary hypertension. Various conditions and medications that could lead to secondary hypertension were listed, but none of them related to the Veteran's service-connected heart condition. Moreover, the Veteran testified at his hearing in November 2010 that his high blood pressure was initially monitored without medication but gradually got worse to the point where medication was indicated. This supports the VA examiners' findings that the Veteran's hypertension is essential, or primary, and not secondary. In summary, the examiners in June 2011 and November 2014 could find no link between the Veteran's service-connected heart disease and his hypertension, and the November 2014 examiner opined that the evidence did not suggest that the Veteran's hypertension is aggravated (made permanently worse beyond natural progression) by his service-connected heart condition. There is no competent medical opinion to the contrary. In this case, the medical opinions are probative as the examiners were aware of the Veteran's medical history, provided fully articulated opinions, and also furnished a reasoned analysis. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Similarly, there is no indication from the Veteran's private treatment records, as noted above, that his private doctors ever suggested that the Veteran's hypertension was aggravated by his service-connected heart condition. In this case, the only evidence supporting the claim is the Veteran's own belief that the hypertension is aggravated by his service-connected heart condition. There is no reason to doubt the Veteran's sincere belief that there is a relationship between his service-connected heart condition and his hypertension; however, the Veteran did not furnish any supporting medical evidence in this regard. As a lay person, in the field of medicine the Veteran does not have the training or expertise to render a competent opinion on the claimed issue, as this case involves medical determinations that are too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion by itself cannot support his claim, and is outweighed by the findings to the contrary by the VA examiners, medical professionals who considered the pertinent evidence of record and found against such a relationship. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's current hypertension was incurred in or otherwise the result of his active service. His hypertension may not be presumed to have been incurred in service, and it is not aggravated by a service-connected disability. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally, Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Service connection for hypertension is denied. ____________________________________________ N. RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs