Citation Nr: 1619738 Decision Date: 05/16/16 Archive Date: 05/27/16 DOCKET NO. 09-47 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1961 to February 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2009, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is in the record. In March 2012, the Board denied the Veteran's petition to reopen the claim of service connection for hypertension on a direct basis, but remanded the claim of service connection for hypertension as secondary to service-connected disabilities for further development. Accordingly, only the theory of entitlement of secondary service connection is before the Board. More recently, in April 2014, the Board once again remanded this claim for additional development. FINDING OF FACT The competent and credible evidence of record shows that Veteran's hypertension was not caused or aggravated by his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for hypertension as secondary to service-connected disabilities have not been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the RO provided VCAA notice by letter dated in November 2008. However, that letter addressed only the theory of service connection on a direct basis. Nevertheless, the Board finds that any notice defect did not affect the essential fairness of the adjudication of the secondary service connection theory of the claim, and that the Veteran was not prejudiced thereby. In this regard, the Board observes that the Veteran himself, through his representative, raised the issue of entitlement to service connection for hypertension as secondary to service-connected disabilities. Thus, the Veteran had actual knowledge of the information and evidence necessary to substantiate a secondary service connection claim. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In addition, the Veteran has been represented by a service organization during the entire appeal, further buttressing the fact that he had actual knowledge. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA, private, and Social Security Administration medical records, as well as statements from the Veteran. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. Moreover, the Veteran was provided with VA examinations in April 2012 and May 2014. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2014 VA examination report and medical opinion in this case is more than adequate, as it reflects a review of the Veteran's claims file, considers all of the pertinent evidence of record, and provides a rationale for the opinion offered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). In light of the VA examination and medical opinion, the Board finds that the development requested by the Board's prior remands has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Further development will not provide a basis to grant this claim. II. Analysis As alluded to above already, the Board previously denied the Veteran's petition to reopen the claim of direct service connection for hypertension. So, the remaining issue before the Board is whether the Veteran's hypertension is caused by or aggravated by the service-connected disabilities of residuals of cold injuries to the feet and internal derangement and degenerative arthritis of the left knee. In order to establish entitlement to service connection a secondary basis, there must be (1) evidence confirming the Veteran has the claimed disability; (2) evidence of a service-connected disability; and (3) evidence establishing a nexus or correlation between the service-connected disability and the claimed disability. Depending on the specific condition being claimed, medical evidence is generally, though not always, required to associate the condition being claimed with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). After considering the evidence of record under the applicable laws and regulations, the Board concludes that service connection for hypertension secondary to service-connected disability is not warranted. As mentioned above, in March 2012, the Board remanded this claim to obtain additional medical evidence to aid in the determination as to whether the Veteran's hypertension was caused or aggravated by his service-connected disabilities. To this end, the Veteran was afforded a VA examination in April 2012. The examiner noted that anxiety/stress was a modifiable risk factor for hypertension, but that the associated between chronic pain and blood pressure was much less well understood. Ultimately, the examiner opined that the Veteran's hypertension was less likely than not cause by or permanently aggravated by his service-connected disabilities of residuals of cold injuries to the feet and internal derangement and degenerative arthritis of the left knee. The examiner, however, reached this conclusion on inaccurate facts stating that the Veteran had a history of longstanding tobacco and alcohol use. Resultantly, this opinion lacks probative value and the Board once again remanded this claim to provide the Veteran with another VA examination/opinion. Accordingly, the Veteran was provided with an additional VA examination in May 2014. The Veteran reported that he was diagnosed with hypertension in approximately 1991. The examiner noted that the Veteran was a nonsmoker and had no history of prior tobacco or alcohol abuse. The examiner opined that the Veteran's hypertension was not caused by or aggravated by the service-connected disabilities of residuals of cold injuries to the feet and internal derangement and degenerative arthritis of the left knee. She commented that the Veteran's stress due to the chronic pain of his service-connected injuries to his feet and left knee may have a temporary effect in maintaining good blood pressure control during periodic flare-ups of pain. The examiner stated, however, that any stress caused by coping with his service-connected disabilities would not cause or aggravate hypertension. She explained that, in this context, the term aggravation means a permanent increase in hypertension, that is, an irreversible worsening of hypertension beyond its natural clinical course as contrasted to a temporary worsening of symptoms. Therefore, the examiner concluded that the Veteran's hypertension was not caused by or aggravated by the service-connected disabilities. Because the May 2014 VA examiner's opinion is based upon a review of the Veteran's history and records and is supported by a thorough and specific explanation, it carries great probative weight. This opinion is also consistent with the April 2012 VA examiner's statement, to the extent that the April 2012 VA examiner stated that that anxiety/stress is a modifiable risk factor for hypertension. Further, while the Veteran has stated that his VA physician told him that his hypertension was caused and/or aggravated by his service-connected disabilities, this assertion lacks probative value. It does not constitute reliable medical evidence, as the Veteran may have misremembered or misunderstood what he was told, or may otherwise be misrepresenting what he was told. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (finding that the connection between what a physician said and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is too attenuated and inherently unreliable to constitute medical evidence). The Veteran's bias in supporting the present claim for benefits is a significant factor in this regard. The VA medical opinion obtained in this case has much more probative value and carries more weight than the Veteran's statements. Further, the May 2014 VA medical opinion carries more weight than the Veteran's assertion that his hypertension was caused by pain/stress associated with his service-connected disabilities. The VA opinion provides a thorough explanation in support of the conclusion reached and represents the informed findings of an objective medical professional. It thus possesses more probative value than the Veteran's lay assertions, as the Veteran does not have a similar medical background or expertise. 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); see also Madden, 125 F.3d at 1481. Although the evidence of record reflects that the Veteran has been diagnosed with hypertension, the most probative evidence of record indicates that it was not caused by or aggravated by the service-connected disabilities of residuals of cold injuries to the feet and/or internal derangement and degenerative arthritis of the left knee. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for hypertension secondary to service-connected disability, and under these circumstances, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for hypertension, as secondary to service-connected disability, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs