Citation Nr: 1609359 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 07-31 253A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1987 to July 1993. This appeal to the Board of Veterans' Appeals (Board) is from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. By that rating action, the RO, in part, denied entitlement to service connection for hypertension and denied the Veteran's request to reopen a previously-denied claim seeking service connection for a back disorder. The Veteran appealed these determinations to the Board. In a July 2015 decision, the Board reopened the previously denied claims for service connection for hypertension and back disorder, and remanded the underlying claims on their merits to the RO for addition development. The requested development has been completed and the issues on appeal have returned to the Board for further consideration. As indicated by the Board in the Introduction of its July 2015 decision, the Veteran requested a hearing before a Veterans Law Judge. A hearing was scheduled for July 2014, and advance notice, which was not returned as undeliverable, was sent to his last known address of record. He failed to appear at his July 2014 hearing, and he has not submitted a motion to reschedule. However, at some point in November 2014, the RO learned of an alternative mailing address for the Veteran. Accordingly, the RO sent him a second notice letter informing him that "we have placed you on the list of persons wanting to appear at our office for an in-person hearing before the Board of Veterans' Appeals (BVA), for what is commonly called a 'Travel Board' hearing." The Veteran thereafter notified the RO that he no longer desires a hearing before the Board. The issue of entitlement to service connection for a back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDING OF FACT The evidence of record does not show that the Veteran's hypertension had its onset during his active service or within one year of service separation and is not otherwise related to military service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative of any information and evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). The notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). For service connection claims, the notice should address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA provided adequate notice in a letter sent to the Veteran in May 2006. VA has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Board finds that all necessary development has been accomplished with respect to the claim for service connection for hypertension, and therefore appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has associated the Veteran's service treatment records and VA and private treatment records with the Veteran's electronic record. In response to the Board's July 2015 remand directives, VA provided the Veteran an examination and obtained adequate medical opinion to determine the etiology of his hypertension in September 2015. The examiner considered the relevant history of the Veteran's condition, provided detailed descriptions of the condition, and provided analysis to support the conclusions reached. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Given the foregoing, the Board finds that the AOJ has substantially complied with its July 2015 remand directives as it relates to the Veteran's claim for service connection for hypertension decided herein. See 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 (Fed. Cir. 2002). Overall, the Board finds that there is no further assistance that would be reasonably likely to substantiate the service connection claim decided herein. II. Legal Analysis The Veteran seeks service connection for hypertension. After a brief discussion of the general laws and regulations pertaining to service connection, the Board will analyze the claim. Service connection may be granted for a disability resulting from a 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). To establish service connection, a veteran must show: (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 (Fed. Cir. 2004). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease, to include hypertension, are presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, such as cardiovascular-renal disease, to include hypertension, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, the tenets of § 3.303(b) are applicable to the claim for service connection for hypertension. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). For VA purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. (millimeters of mercury) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2015). The Veteran seeks service connection for hypertension. The Board will deny the claim because the preponderance of the evidence of record is against a finding of a nexus between the Veteran's diagnosed hypertension and his period of military service. The September 2015 examiner diagnosed the Veteran with hypertension, with a date of diagnosis in 2005. (See September 2015 VA Hypertension Disability Benefits Questionnaire (DBQ) at page (pg.) 2). The record also includes a December 2001 VA treatment report reflecting the examining clinician's assessment that the Vetearn had hypertension that had its onset in 2001. (See December 2001 VA treatment report). These diagnoses satisfy the first prong of the service connection claim (present disability). As to the in-service element of the service connection claim, the Veteran's February 1987 and March 1993 service enlistment and separation examination reports do not indicate any issues with his blood pressure, which read 129/80 and 128/86, respectively, and no cardiac concerns were noted. Notably, on accompanying Reports of Medical History to these examinations, as well as on several dental patient questionnaires issued throughout service, the Veteran denied having had high or low blood pressure issues. These documents are signed by the Veteran attesting to the truth and accuracy of the information contained therein. In addition, when the Veteran received treatment for various medical issues throughout service, there were no elevated blood pressure readings or reports of high or low blood pressure. Regarding the nexus element of a service connection claim, there are private and VA opinions that are for and against the claim. In support of the claim, is an October 2015 report, prepared by the Veteran's treating physician since January 2015, M. S., M. D. Dr. M. S. indicated that he had reviewed the Veteran's service treatment records and VA medical records, dated from 1993 to the present. Dr. M. S. related that the Veteran had had elevated blood pressure readings while on active duty and that they had continued since that time. After a physical examination of the Veteran and review of his service and post-service treatment records, Dr. M. S. opined that the Veteran was totally disabled, in part, due to his hypertension and that he had no known family history that would have contributed to this disability. Overall, it was Dr. M. S.'s conclusion that the "injuries" suffered by the Veteran were a result of the trauma from his military service and had contributed and aggravated, in part, his totally disabling hypertension. (See October 2015 report, prepared by Dr. M. S.). The Board finds Dr. M. S.'s opinion to be of reduced probative value in evaluating the Veteran's claim for service connection for hypertension because it is based on an inaccurate premise; namely that the Veteran had elevated blood pressure readings during military service. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrences described). Here, Dr. M. S.'s favorable opinion concerning the likely etiology of the hypertension is based on the mistaken belief that the Veteran had elevated blood pressure readings during military service. The clinical evidence shows that this was not the case. Thus, Dr. M. S.'s opinion is of limited probative value in evaluating the claim for service connection for hypertension. Evidence against the claim includes a September 2015 VA Hypertension DBQ. The September 2015 physician opined that the Veteran's hypertension was less likely than not related to service or to have manifested therein. The physician reasoned that the Veteran's hypertension had its onset 10 years previously (2005) and that it was related to his diabetes mellitus, a disability for which service connection has not been established. The physician noted that the Veteran had reported that his hypertension had been controlled with medication. (See September 2015 Hypertension DBQ examination report). The Board finds the September 2015 physician's opinion to be of high probative value in evaluating the Veteran's claim for service connection for hypertension. The opinion is well-reasoned and thorough, having considered the entire record, notably the Veteran's service treatment records, which, as noted above, are devoid of any elevated blood pressure readings with no documentation of any diagnosis of, or treatment for, hypertension. It is also consistent with the other clinical evidence of record, such as a December 2001 VA treatment report reflecting that the Veteran's hypertension had its onset in 2001, eight years after his discharge from military service in 1993. Therefore, the September 2015 opinion warrants probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that "most of the probative value of a medical opinion comes from its reasoning" and that "[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions"). The Board is cognizant of the Veteran's contentions in written statements submitted throughout the appeal that he had elevated blood pressure readings during his service and that they continued after discharge. However, this in stark contrast to his service treatment records that were devoid of the same, as well as any diagnosis of or treatment for hypertension. The Board finds the service treatment records are more probative than the Veteran's statements because they are contemporaneous to the time period in question, as opposed to the statements made by the Veteran many years after service. Thus, the most probative evidence supports a conclusion that hypertension did not have its onset during service or within one year of separation from active duty. Similarly, continuity of symptomatology subsequent to service is not demonstrated, as noted above. Walker, supra. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating to his blood pressure readings during service. The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). The Board finds, however, that objective medical evidence and an opinion are necessary in order to determine whether the present disability, hypertension, is related to injury or disease incurred during the Veteran's service. As discussed above, the preponderance of the evidence of record, notably the service records and the September 2015 physician's opinion, are against a finding that the Veteran's hypertension is etiologically related to, or was initially manifested during military service. Accordingly, the Board finds that the preponderance of the evidence of record is against the Veteran's claim for service connection for hypertension on a direct and presumptive basis. Therefore, this claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Service connection for hypertension is denied. REMAND The Board finds that a remand is necessary with respect to the issue of entitlement to service connection for a back disorder. Specifically, the Board finds that there are complex medical questions presented that have not been fully addressed by the evidence of record. The Veteran seeks service connection for a back disorder. He maintains that he received treatment for his back during service and that he has continued to have back problems since that time. The Veteran's service treatment records pertinently reflect that his spine was evaluated as "normal" upon entrance into service in February 1987. (See February 1987 enlistment examination report). On an accompanying Report of Medical History, the Veteran reported having had recurrent back pain. The examining clinician noted that at times, the Veteran had sought treatment from a physician for his back. A consultation report revealed that the Veteran had played a lot of table tennis prior to service entrance. The examining clinician noted that the Veteran reported having experienced pain in the D1-2 spinal process when he played and that it would last for a day and then dissipate. The Veteran reported that he had been pain-free since he had stopped playing table tennis. A physical examination of the cervical and dorsal spines revealed normal range of motion without tenderness. An x-ray of the spine revealed normal cervical and upper dorsal spines with the exception of mild scoliosis. In February 1988, the Veteran complained of having had low back pain for the previous two (2) weeks. He reported that he had had difficulty lifting and raising his arms over his head for the previous three (3) years. The examining clinician entered an assessment of mild increase in latissimus dorsal tone. The Veteran was prescribed Motrin and Flexeril for his pain. In August 1989, the Veteran complained of upper scapular and back pains. The clinician entered an impression of muscle strain with spasms of the shoulders/upper back. A March 1993 service separation examination report reflects that the Veteran's spine was evaluated as "normal." On an accompanying Report of Medical History, the Veteran denied having had recurrent back pain. Post-service VA and private evidence of record contains opinions that are supportive of and against the claim. Evidence in support of the claim includes an October 2015 opinion, prepared by the Veteran's treating physician since June 2015, Dr. M. S. Dr. M. S. indicated that he had reviewed the Veteran's service treatment records and VA medical records, dated from 1993 to the present. Dr. M. S. indicated that the Veteran had suffered from persistent and recurrent back pain since his discharge from service in 1993. Dr. M. S. related that VA and private physicians had diagnosed him with severe lumbar strain and disc disease with radiculopathy. Dr. M. S. opined, after a physical evaluation of the Veteran and review of his service and post-service treatment records, that the Veteran was totally disabled, in part, from his back condition and that he did not have any known family history that would have contributed to this condition. Thus, it was Dr. M. S.'s conclusion that the injuries suffered by the Veteran were a result of the trauma from his military service and that they had contributed and aggravated his totally disabling back condition. Evidence against the claim includes a September 2015 examiner's opinion in connection with an examination conducted for VA. After a physical evaluation of the Veteran, as well as a review of the above-cited service treatment records, the VA examiner concluded that the Veteran's back condition was less likely as not related to his period of military service. The physician reasoned that because of insufficient evidence documented during military service, he was unable to make a nexus between the Veteran's back condition and military service. The physician maintained that there were no "consistent" service treatment records or post-service reports pertaining to the Veteran's back condition. The examiner further opined, "The Veteran['s] current BMI of 30 can be a nexus to his back condition due to strenuous weight bearing and prolonged sitting at work." (See September 2015 Spine DBQ). The Board finds that there are complex medical questions presented in this case that are not fully addressed by the evidence of record. The Board notes that no VA or private medical report is of record with an etiology opinion and supporting rationale which specifically addresses the question of whether the Veteran's spine disorder was congenital, preexisted service, and/or was caused by or aggravated by the Veteran's military service. For these reasons, the Board finds that medical opinions are needed. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA spine examination. The VA examiner is requested to review all pertinent records associated with the Veteran's Veterans Benefits Management System (VBMS) and Virtual VA electronic records. The VA examiner should identify all current spine disorders by diagnosis and offer the following opinions: (a) For each of the spine disabilities diagnosed, the VA examiner should state whether the Veteran's spine disabilities are acquired or congenital. If a congenital disorder exists, the examiner should state whether it is a disease or defect (Note: A disease is capable of improvement or deterioration while a defect is static.) (b) If a congenital disease is present, the examiner should render a medical opinion as to whether the congenital disease permanent worsened beyond normal progress during the Veteran's military service, to include the Veteran's complaints of back pain in February 1988 and August 1989. (c) If there was permanent worsening of a congenital disease during service, was the worsening consistent with the natural progress of the disease, or was the worsening beyond the natural progress of the disease? (d) If a congenital defect is present, the examiner should render a medical opinion as to whether it is at least as likely as not that there was a superimposed disease or injury during military service that resulted in additional disability. (e) If an acquired (non-congenital) disorder exists, the VA examiner should state whether there is clear and unmistakable (obvious and manifest) evidence that the Veteran's spine disability or disabilities existed prior to the period of active duty service beginning in May 1987. (f) If it is the opinion that the Veteran's acquired spine condition(s) clearly and unmistakably did pre-exist service, were the spine condition(s) clearly and unmistakably not aggravated (permanent worsening beyond normal progress) by the Veteran's period of active duty? In responding to these questions, the examiner should note that temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, in contrast with symptoms, has worsened. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. (g) If the answer to (f) above is negative, the Veteran is presumed sound at service entrance. Therefore, is it at least as likely than not (i.e., 50 percent or greater probability), that any current spine disability is etiologically related to any incident of active duty, to include complaints of back pain in February 1988 and August 1989? The VA examiner is requested to provide a rationale for any opinion provided. In the report, the examiner should refer to all medical and lay evidence of record used in making the conclusions. If the examiner is unable to answer the questions presented without resort to speculation, he or she should indicate the reason(s). 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the issue of service connection for a back disorder should be readjudicated in light of all the evidence of record. If the benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case, and should afford them the appropriate time period for response. Thereafter, the case should be returned to the Board for further appellant review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs