Citation Nr: 1637331 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 09-39 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for chronic headaches, to include as secondary to hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2006 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In March 2016, the Board remanded the case to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional development. Following the issuance of a May 2015 supplemental statement of the case wherein the AMC continued the denial of both issues, the matter was returned to the Board for its adjudication. FINDINGS OF FACT 1. The competent medical evidence does not demonstrate that the Veteran's hypertension is attributable to the Veteran's active service or any incident of service. 2. The competent medical evidence does not demonstrate that the Veteran's headache condition is attributable to the Veteran's active service or any incident of service, to include as secondary to a service-connected disability. CONCLUSIONS OF LAW 1. Service connection for hypertension is not warranted. 38 U.S.C.A. § 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. Service connection for headaches, to include as secondary to hypertension, is not warranted. 38 U.S.C.A. § 1110, 5107 (West 2014); 38 C.F.R. § 3.303, 3.310 (2015); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, enlarged VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. Furthermore, as part of the notice, VA must indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will obtain. VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Pursuant to its obligations under the VCAA, VA is required to provide notice to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO provided the Veteran with pre-adjudication VCAA notice via letter dated in June 2008. He was notified of the evidence needed to substantiate his claim for service connection and that VA was responsible for obtaining military service records, records from VA medical centers, or records in the custody of other agencies, so long as he adequately identified those records and authorized VA to obtain those records. In addition, he was informed that he could submit records not in the custody of a federal agency on his own behalf or authorize VA to obtain such records, and that he was ultimately responsible for obtaining any requested records not in the custody of a Federal department or agency. Finally, the letter notified him of the criteria that VA utilizes when determining the disability rating and the effective date of awards. Under 38 U.S.C.A. § 5103A, VA must also make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. The RO has obtained the Veteran's service personnel and treatment records, as well as VA and private treatment records. The Veteran has submitted personal statements during the pendency of his appeal in support of his claim. He has not identified any additionally available evidence for consideration. Pursuant to the Board's March 2016 remand, the AMC was first directed to obtain and associate with the claims file ongoing VA treatment records dated from April 2014. In addition, the AMC was directed to secure an addendum opinion as to the etiology of both the hypertension and headache conditions, with specific attention to be paid to a May 2008 prescription for blood pressure medication. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 14 (1999). Upon receipt of the returned case, the AMC promptly obtained and associated with the claims file updated VA treatment records documenting the Veteran's treatment at his local VA medical center. Thereafter, the Veteran's claims file was evaluated by a VA examiner in April 2016. Based upon that review, with a specified discussion of the aforementioned May 2008 prescription for blood pressure medication, the examiner offered an opinion as to the etiology of both claimed conditions. As the AMC obtained the requested treatment records and then had a VA examiner issue an opinion with a rationale that paid specific attention to the highlighted May 2008 prescription, the Board finds that the AMC substantially complied with the directives of the Board remand. VA has conducted medical inquiry in the form of VA examinations in June 2008 and June 2014, as well as the previously discussed April 2016 VA examiner's opinion. 38 U.S.C.A. § 5103A. The examiners who issued opinions in all three instances considered the Veteran's history and provided a rationale for the conclusions they reached. Therefore, the Board finds that the opinions they espoused are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In recognition of these efforts by the RO to obtain the known evidence that may substantiate the Veteran's claim, and it being clear that the Veteran has not indicated that there exists additional evidence to support his claim, the Board concludes that no further assistance is required to be provided to the Veteran in developing the facts pertinent to his claim in order to comply with the duty to assist. Hypertension The Veteran contends that his hypertension began in service and has continued to the present. Specifically, he has referred to an instance of elevated blood pressure that was recorded in service while he was being evaluated for an unrelated condition as evidence that he had hypertension in service that went undiagnosed until after service. In the alternative, he contends that he developed hypertension within one year of service, as evidenced by his being prescribed blood pressure medication some nine months after discharge, and that he is thus entitled to service connection for hypertension on a presumptive basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (2015); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Moreover, in the case of hypertension, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. In order to establish direct service connection for a disability, there must be: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury incurred, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). A review of the Veteran's service treatment records does not reveal any complaints, findings, treatment or diagnoses relating to hypertension. On his March 2006 entrance examination, his blood pressure was 132/82, and on his July 2007 separation examination, his blood pressure was 135/84. The April 2016 VA examiner mentioned an instance of elevated blood pressure on one occasion in service in July 2007 when the Veteran was being evaluated for hand trauma; however, the Board has not been able to locate a copy of this outpatient record referred to by the examiner. In any case , as discussed by the April 2016 VA examiner, one instance of elevated blood pressure does not qualify as a diagnosis of hypertension for VA purposes 38 C.F.R. § 4.104, Diagnostic Code 7101 (2015). Post-service private treatment records from a Dr. G.C. with the Fitz-Gerald Clinic dated in May 2008 indicate that the Veteran was prescribed blood pressure medication, but discontinued using the medication after a few days due to the fact that the medication induced blackouts. There is no indication in the May 2008 record as to why the Veteran was prescribed blood pressure medication, but it is significant that the Veteran was not diagnosed with hypertension at this time. Furthermore, his blood pressure was 145/74. On a subsequent treatment record dated in September 2009, Dr. G.C. still did not list hypertension as a diagnosis and the Veteran was not prescribed any medication. The Veteran's blood pressure at this time was 146/95. However, two weeks later in the month of September 2009, the Veteran reported that his blood pressure had "been running high", and Dr. G.C. noted that the Veteran had uncontrolled hypertension. His blood pressure was 138/90. On a prescription pad sheet dated one day earlier than the later outpatient record in September 2008, Dr. G.C. stated that the Veteran has "hypertension which could cause headaches." The Veteran was first afforded a VA examination in connection with his claim in June 2008 for the purpose of providing an opinion as to the nature and etiology of his hypertension. During the examination he reported that he was started on blood pressure medication two months previous after having an elevated blood pressure reading during his visit with his primary care physician. The Veteran stated that he stopped taking the medication because it made him "black out". The examiner noted that the Veteran did not report any symptoms of hypertension or treatment for hypertension. The following three blood pressure readings were taken: 144/99, 138/78, and 142/90. After noting that he did not have any records from the Veteran's primary care physician to substantiate the finding that the Veteran had sustained elevation of his blood pressure, the examiner asserted that there was insufficient evidence to confirm a diagnosis of hypertension. In support thereof, the examiner detailed that the Veteran had one diastolic blood pressure reading that was mildly elevated but that this one elevation did not meet the criteria to diagnose hypertension. The Veteran was afforded another VA examination in June 2014 to first confirm whether he had hypertension and then provide an opinion as to the etiology of the hypertension. The examiner noted that the Veteran had a diagnosis of hypertension and was prescribed medication to help treat it but noted that it was unknown whether that diagnosis was confirmed by readings taken two or more times on at least three different days. The following three blood pressure readings were taken: 125/74, 118/76, and 127/77. Although the examiner did not offer an opinion as to the etiology of the hypertension, they did state that treatment for hypertension did not begin until May 2009. Pursuant to the March 2016 Board remand, the Veteran's claims file was evaluated by a VA examiner in April 2016 for the purposed of providing an opinion as to the etiology of the hypertension. After confirming that the claims file was thoroughly reviewed, the examiner opined that it was less likely than not that the hypertension was incurred in service, diagnosed within one year of service, or otherwise related to service. In support thereof, the examiner first noted that at most there was one instance of elevated blood pressure in service on an outpatient record dated in July 2007 (although, as discussed above, the Board has not been able to locate this file in order to corroborate the examiner's reference to it). As highlighted by the examiner, when considered in light of the fact that at no other point during service did the Veteran have an elevated blood pressure reading, this one instance of elevated blood pressure does not qualify for a diagnosis of hypertension for VA purposes. As for the May 2008 prescription of blood pressure medication by Dr. G.C., the examiner pointed out that there were no corresponding records documenting elevated blood pressure readings or a diagnosis of hypertension to justify the prescription of this medication. Furthermore, the Veteran stopped using the medication after only a few days due to the fact that it caused him to black out. The examiner found that the lack of corroborating evidence coupled with the Veteran's hasty cessation of the use of the medication suggests that the medication was incorrectly prescribed and that the Veteran was not hypertensive at this point. Instead, the examiner found that the records establish that he was not diagnosed until September 2009, which was more than one year after his discharge from the military. A review of post-service VA treatment records shows that the Veteran has been receiving treatment for hypertension since at least 2012. On a July 2012 outpatient record, it was noted that the Veteran had a history of hypertension dating back to 2007, and that 2007 is when the Veteran attests he began taking medication for hypertension. Upon consideration of the evidence, the Board finds that service connection for hypertension is not warranted. As discussed above, the Veteran's service treatment records are completely absent any complaints, diagnoses, or treatments related to hypertension. Even if the Board were to find that the Veteran did have one instance of elevated blood pressure in service as reported by the April 2016 VA examiner, one instance would not qualify as hypertension for VA purposes. Furthermore, although the Veteran has apparently reported that he began receiving treatment for hypertension in 2007, there is no documentation to support any such finding. Thus, service connection on a direct basis is denied. 38 C.F.R. § 3.303. With regards to whether he had hypertension within one year of service, the Board finds that the April 2016 VA examiner's opinion is highly probative of the issue, as the examiner took into consideration the entire claims file and supported the opinion with a detailed review of the Veteran's medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (a medical opinion must be supported by sufficient evidence and cannot necessarily rely solely on the claim file alone.). This negative opinion is contradicted by no evidence in the claims file other than the Veteran's general contention that his hypertension is related to service. While the Board acknowledges the Veteran's lay statements, they are not competent evidence to establish the etiology of his hypertension. Medical causation involves questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the weight of the evidence is against a determination that the Veteran's hypertension manifested within a year of service. 38 C.F.R. §§ 3.307, 3.309. The Veteran may still be entitled to service connection for hypertension if all of the evidence establishes that the Veteran's hypertension is attributable to service. 38 C.F.R. § 3.303(d). However, in light of the fact that the Veteran's assertions are not supported by the medical evidence before the Board, as well as the Board's determination that the preponderance of the evidence support a determination that the Veteran manifested his hypertension more than a year after service, the Board concludes that service connection for hypertension under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's hypertension claim in total must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the preponderance of the evidence is against the Veteran's claim of service connection for hypertension, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Headaches The Veteran contends that his currently diagnosed headache condition began in service and continued to the present day. In the alternative, he asserts that his headache condition is secondary to his hypertension. From the outset, the Board notes that with the denial of service connection for hypertension, service connection for a headache condition on a secondary basis is not warranted. 38 C.F.R. § 3.310. The only service-connected disability for the headache condition to be secondary to is residuals of a left knee lateral meniscus injury for which the Veteran has been service connected with a disability rating of 10% since August 11, 2007. There is no evidence in the claims file that the Veteran's headache condition was aggravated in any way by his service-connected left knee lateral meniscus injury. Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, service connection for a headache condition on a secondary basis is denied. A review of the Veteran's service treatment records reveals no complaints, diagnoses, or treatments related to headaches during the entire period of time that the Veteran was in service. The Veteran's July 2007 separation examination and corresponding report of medical history are absent any notations of any conditions relating to headaches, although the Veteran did report several other conditions at the time of his separation. Outpatient records from a Dr. E.L. (also with the Fitz-Gerald Clinic) dated in May 2008 show that the Veteran complained of an upper respiratory infection with symptoms of headaches that worsened upon bending over. No migraines were diagnosed, and the headaches symptoms were instead attributed to acute sinusitis. Thereafter, in an outpatient record from Dr. G.C. dated in November 2008, the Veteran reported experiencing symptoms of an upper respiratory infection for the previous two days, to include headaches. No migraines were diagnosed at this time either, nor were migraine headaches listed as part of the Veteran's past medical history. Chronologically, the next outpatient record from Dr. G.C. contained in the claims file is dated in September 2009, during which the Veteran reported that he had a history of migraine headaches with a diagnosis in 2008. Later that month, on a prescription pad, Dr. G.C. opined that the Veteran has migraine headaches and hypertension which could cause headaches. Furthermore, Dr. G.C. stated that the "migraines were diagnosed before August 10, 2008." The Veteran was afforded a VA examination in June 2008 in order to provide an opinion as to the nature and etiology of his headache condition. During the examination he reported that he had headaches during basic training but that he did not have any treatment for headaches while he was service. As for his symptoms, he stated that he had headaches three times a week and that he attempted to treat the headaches with ibuprofen. The diagnosis was tension headache. The Veteran was afforded another VA examination in June 2014 in order to again provide an opinion as to the nature and etiology of his headache condition. He once more reported that the headaches began while he was in service. His symptoms including throbbing pain localized to the right side of the head that worsened with physical activity as well as nausea, vomiting, sensitivity to light, and sensitivity to sound. The diagnosis was migraine headaches. After the physical examination and a review of the claims file, the examiner opined that it was less likely than not that the headaches condition had its onset during military service or within a year of discharge. In support thereof, the examiner first refuted the contention by Dr. G.C. that the headaches began prior to August 2008, finding that there were no records of headaches being reported to Dr. G.C. by the Veteran before this time. Furthermore, the examiner noted that the Veteran was regularly seen while in service for medical care and never reported any symptoms of a headache condition. On the April 2016 opinion, the examiner maintained the opinion that it was less likely than not that the headache condition was related to military service, finding that there was no evidence of any reported symptoms of a headache other than one isolated headache on a May 2008 outpatient report from Dr. G.C., which was attributed to acute sinusitis. In addition, the examiner noted that there was no diagnosis of migraines or recurrent significant headaches until 2009, more than a year after separation from the military. The Veteran's post service VA treatment records show continued treatment for a headache condition, classified as migraine headaches, beginning in 2012. Upon consideration of the evidence before it, the Board finds that service connection for a headache condition is not warranted. The Veteran's service treatment records are completely absent any complaints, diagnoses, or treatments related to a headache condition. The Board acknowledges that the Veteran has reported that his headaches began while in service, and there is no doubt that the Veteran is competent to report the symptoms of his headache condition and when those symptoms began. Layno, 6 Vet. App. at 469. However, the fact remains that there is no evidence that the Veteran ever reported those symptoms while he was in service. Furthermore, he did not report those symptoms when he was seen at his primary care provider following service for an upper-respiratory infection in May 2008. The Veteran did state that he experienced headaches while in service on the June 2008 VA examination, but he admitted that he never reported having headaches nor did he receive treatment for headaches during the entire period of his service. Moreover, the Veteran's reported symptoms of a headache condition were diagnosed as tension headaches by the VA examiner in the June 2008 examination, not as a headache condition. It was not until September 2009 that the Veteran's records reflect that he was actually diagnosed with a headache condition. Although the lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, it is a factor in the Board's analysis. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Here, the weight of the evidence is against a finding that the Veteran incurred his headache condition while in service. Accordingly, service connection on a direct basis is denied. 38 C.F.R. § 3.303. Again, the Veteran may still be entitled to service connection for a headache condition if all of the evidence establishes that the Veteran's headache condition is otherwise attributable to service. 38 C.F.R. § 3.303(d). On that note, the examiner who administered the June 2014 VA examination and issued the April 2016 addendum opinion has maintained that the Veteran's headaches are not related to service, and supported that opinion with a detailed review of the Veteran's medical history which took into consideration the entire claims file. Nieves-Rodriguez, 22 Vet. App. at 303. This opinion is contradicted by no evidence in the claims file other than the Veteran's general contention that his headache condition is related to service, which he is not qualified to give. Jandreau, 492 F.3d at 1372. Accordingly, the Board finds the VA examiner's negative opinion to be highly probative of the determination as to whether the headache condition is related to service. Moreover, as the preponderance of the evidence is against a finding that the Veteran incurred his headache condition in service or that it is otherwise attributable to service, the Board concludes that service connection for a headache condition under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's headache condition claim in total must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the preponderance of the evidence is against the Veteran's claim of service connection for a headache condition, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for hypertension is denied. Service connection for a headache condition, to include as secondary to a service-connected disability, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs