Citation Nr: 1618073 Decision Date: 05/04/16 Archive Date: 05/13/16 DOCKET NO. 11-28 831A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a heart disorder, to include as secondary to hypertension. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is a veteran (the Veteran) who had active duty service from July 1972 to June 1975. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the RO in Decatur, Georgia. In August 2015, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. In the introduction to the August 2015 remand, the Board noted that the issues of entitlement to service connection for diabetes mellitus and hepatitis-A had been perfected but had not yet been certified to the Board. To date, the RO has not certified either issue. Upon further review, the Board acknowledges that its prior statement was in error. While the Veteran submitted a VA Form 9 in June 2015 listing those issues, this was not timely with respect to the January 2011 rating decision which denied those issues nor with respect to the May 2013 Statement of the Case prepared in response to the Veteran's Notice of Disagreement. Accordingly, the Board does not have jurisdiction over these issues. The Veteran also initiated but did not perfect an appeal of a June 2012 denial of service connection for sleep apnea and posttraumatic stress disorder. The Board also does not have jurisdiction over these issues. The Board acknowledges that the Veteran submitted additional medical evidence after the most recent Supplemental Statement of the Case. The evidence consists of a copy of November 2015 cardiac catheterization report. As the existence of a current heart disorder is not at issue, and as the new evidence does not address the question of nexus, the Board finds that the new evidence is not directly pertinent to the question on appeal and it is not necessary to remand the claim for consideration of this evidence by the RO. FINDINGS OF FACT 1. Hypertension is not related to service and did not become manifest to a degree of 10 percent or more within one year of service separation. 2. A heart disorder is not related to service or to any service-connected disability; coronary artery disease did not become manifest to a degree of 10 percent or more within one year of service separation. CONCLUSIONS OF LAW 1. Hypertension was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 2. A heart disorder was not incurred in service and is not proximately due to or a result of a service-connected disability; coronary artery disease is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 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 FINDINGS AND CONCLUSIONS VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. This presumption applies to veterans who served 90 days or more during a period of war or after December 31, 1946. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Cardiovascular-renal disease, including hypertension, is included among the enumerated chronic diseases. Where shown to be chronic 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For VA rating purposes, hypertension means that diastolic blood pressure is predominately 90 mm. or greater; isolated systolic hypertension means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2015). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. In order for hypertension to have become manifest to a degree of 10 percent, there must be evidence to substantiate that diastolic pressure is predominantly 100 or more; or, that systolic pressure is 160 or more; or, that there is a history of diastolic pressure predominantly 100 or more and that continuous medication for control is required. See 38 C.F.R. § 4.104, Diagnostic Code 7101. In order for coronary artery disease to have become manifest to a degree of 10 percent, there must be documented coronary artery disease resulting in a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. See 38 C.F.R. § 4.104, Diagnostic Code 7005 (2015). In his January 2009 claim, the Veteran asserted that hypertension and heart failure first began on January 1, 1989. The Board observes that this is more than 13 years after service separation. The Veteran's representative has made an argument that is inconsistent with this initial assertion. In the VA Form 646, the representative asserted that hypertension began in service, and that, since that time, the Veteran has had periods of and often constant elevated high blood pressure. The representative identified a reading of 122/80 in service and suggested this reading was evidence of a manifestation of hypertension in service for purposes of the presumption of service connection. Service treatment records reveal a blood pressure reading at enlistment in June 1972 of 114-68, a reading on July 12, 1974, of 108/76, two readings on January 22, 1975, of 110/60 and 122/80, with no pertinent diagnosis, and a reading at service separation on May 22, 1975, of 100/40. The Veteran was examined at that time and found to have a normal vascular system and a normal heart. With respect to the specific assertion that the blood pressure reading of 122/80 satisfies the presumptive service connection criteria, the Board finds that this is not a manifestation of hypertension to a degree of 10 percent or more. The 10 percent criteria require diastolic pressure that is predominantly 100 or more or systolic pressure that is 160 or more or a history of diastolic pressure predominantly 100 or more with continuous medication for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101. None of the systolic readings in service are 160 or more; none of the diastolic readings in service are 100 or more; and there is no indication that medication was necessary for control of blood pressure. After service, there is no record of treatment for hypertension or heart for at least a decade. In sum, the evidence does not substantiate a manifestation of hypertension to a degree of 10 percent or more within one year of service separation. Therefore, the presumption of service connection for hypertension does not attach. A left heart cardiac catheterization in April 1989 revealed a normal right coronary artery and normal left ventricular function, as well as severe stenosis of greater than 85 percent in the left coronary artery (VBMS record 10/04/2007 ). An April 18, 1989, record from the Georgia Heart Center indicates a past history of hypertension, but does not identify the date of onset (VBMS record 08/12/2009). Over subsequent years, the Veteran underwent multiple coronary artery bypass grafts and stenting, incurred a myocardial infarction in April 2007, and had a pacemaker implanted in April 2008. The Veteran filed his claim for service connection for hypertension and a heart disorder in January 2009. The report of VA diabetes mellitus examination in October 2010 reveals a diagnosis of essential hypertension. Essential hypertension is defined as hypertension occurring without discoverable organic cause. Dorland's Illustrated Medical Dictionary 909 (31st ed., 2007). The report of VA examination in October 2015 includes the opinion that it is less likely than not that cardiovascular renal disease, including hypertension, was manifested within one year of discharge, or is related to active military service, including blood pressure of 122/80, and it is less likely than not that the Veteran's heart disorder to include coronary artery disease, ischemic heart disease, angina pectoris, ischemia, cardiomyopathy, stenting, and angioplasty, is related to his active military service. The rationale includes a discussion of the service treatment records, which the examiner found do not document any pertinent complaints of or treatment for hypertension or a heart disorder. The examiner acknowledged the single reading of 122/80, which he found suggestive of pre-hypertension; however, he found that this does not confirm a diagnosis. The examiner noted that a diagnosis of high blood pressure is based upon two or more readings at two or more separate occasions separated by at least one week, and in this case, there was no further documentation of abnormal blood pressures in the file. The examiner found that the enlistment, interim, and separation examinations show no documentation of cardiovascular-related problems. The October 2015 examiner also found little support for the idea that the Veteran's cardiac condition was solely due to hypertension and noted that the Veteran's hyperlipidemia, diabetes, hypertension, and tobacco abuse were known risk factors for cardiac end-organ damage. There is no medical opinion that purports to relate current hypertension or a current heart disorder to service. The Veteran's lay assertions are the only evidence in favor of such a relationship. Generally, lay evidence is competent with regard to identification of a disease with 'unique and readily identifiable features' which are 'capable of lay observation.' Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). As discussed above, the Board has found that the Veteran's hypertension and heart disorder had post-service onset. The Board finds that relating hypertension and/or a heart disorder of post-service onset to service is not the equivalent of relating a broken bone to a concurrent injury (Jandreau, at 1377). Such an opinion requires knowledge of the potential causes of hypertension and heart disorders, and the inherently medical question of how an event, injury, or disease in service may have contributed to bring about temporally remote hypertension and/or a heart disorder. These are not matters which are capable of lay observation. Accordingly, the Veteran's lay statements are not competent evidence on this point. As the only competent opinion is against any relationship between current hypertension and service or a current heart disorder and service, the Board finds that a preponderance of the evidence is against this element necessary for service connection. It naturally follows that, as hypertension is not a service-connected disability, there can be no secondary service connection etiology for the claimed heart disorder. In sum, the Board finds that hypertension is not related to service and did not become manifest to a degree of 10 percent or more within one year of service separation. The Board also finds that a heart disorder is not related to service or to any service-connected disability, and did not become manifest to a degree of 10 percent or more within one year of service separation. In light of these findings, the Board concludes that service connection hypertension and a heart disorder is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to him in April 2009 under the Veterans Claims Assistance Act of 2000 (VCAA) and he has not identified any prejudice resulting from any deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice on a notice deficiency; the burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency's determination). The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, and private treatment reports identified by the Veteran. Regarding private records, the RO successfully obtained records from Pulipaka B. Rao, MD; Carmen Oddis, MD; William P. Brooks, MD, at South Macon Family Physician's Clinic; Cardiopulmonary Associates; and from Coliseum Medical Center's Macon Northside Hospital. The RO received a negative response for records from the Medical Center of Central Georgia; however, records received from other sources include reports from this facility. The RO has also obtained a thorough medical examination regarding the claims, as well as medical opinions. The Veteran has made no specific allegations as to the inadequacy of any opinion. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board's remand instructions included scheduling the Veteran for VA examinations to ascertain the etiology of his hypertension and heart disorder. With respect to hypertension, the examiner provided an opinion as to whether the Veteran's hypertension had its onset in service or was manifested within one year of the Veteran's military discharge, and as to whether the Veteran's current hypertension is related to his active military service, to include the in-service 122/80 blood pressure reading in January 1975. The examiner provided a rationale for the opinion. With respect to the heart disorder, the examiner provided an opinion as to whether the Veteran's cardiovascular renal disease had its onset in service or was manifested within one year of the Veteran's military discharge, and whether the Veteran's heart disorder, to include coronary artery disease, ischemic heart disease, angina pectoris, ischemia, cardiomyopathy, stenting, and angioplasty is related to his active military service. The examiner provided a rationale for the opinion. As noted above, the Veteran has not identified any inadequacy in the examinations or opinions. The Board finds that the RO substantially complied with the Board's August 2015 remand instructions. ORDER Service connection for hypertension is denied. Service connection for a heart disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs