Citation Nr: 1752287 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-01 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to April 1967. He had additional service with the Army National Guard from May 1973 to September 2004. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In July 2015, the Board denied service connection for a bilateral knee disability, and remanded the issues of entitlement to service connection for hypertension, bilateral hearing loss disability, and tinnitus. While the appeal was in remand status, the Agency of Original Jurisdiction (AOJ) granted service connection for bilateral hearing loss disability and tinnitus. As the grant of service connection constitutes a full grant of the benefits sought on appeal, these issues will not be addressed by the Board. FINDING OF FACT Hypertension was not incurred or aggravated by active service, and is not attributable to any period of ACDUTRA. CONCLUSION OF LAW Hypertension was not incurred or aggravated during active service, nor may it be presumed to have been so incurred or aggravated, and was not incurred during the Veteran's periods of ACDUTRA. 38 U.S.C. §§ 1110, 101(24) (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). A July 2011 letter discussed the evidence necessary to support a claim for service connection. The Veteran was informed of the allocation of responsibilities between himself and VA. He was also advised of the manner in which VA determines disability ratings and effective dates. Subsequent letters advised the Veteran of the status of his claim. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, available service and VA treatment records have been obtained and associated with the claims file. A VA examination has been conducted, and the Board finds that it is adequate in that it was conducted by a clinician who reviewed the record, interviewed the Veteran, performed appropriate examinations, and discussed the bases for his conclusions. The Board is aware that a complete copy of the Veteran's service treatment records from his period of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available for review. In a case in which a Veteran's service records are unavailable through no fault of his or her own, there is a heightened obligation for VA to assist the veteran in the development of his or her claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to her claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). A review of the claims folder reveals that VA has fulfilled its heightened duty to assist the Veteran. The RO notified the Veteran in January 2012 that National Guard records had been requested, but that if he had copies in his possession he should submit them to the VA. National Guard records submitted by the Veteran have been associated with the claims file. The RO sent letters in January 2012 to the Joint Forces Headquarters and the Michigan Army National Guard State Medical Command requesting verification of all periods of service (to include ACDUTRA/INACDUTRA), a complete copy of all service medical treatment records and a copy of all physical examinations. The RO received a response in March 2012 from the department of the Army that no records were found and a March 21, 2012 Memo from the Michigan Army National Guard State Medical Command finding that medical records were "non-locatable." The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A "Veteran" is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. §101(24); 38 C.F.R. § 3.6(a), (d). When a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve Veteran status for purposes of that claim. See 38 U.S.C.A. § 101(2)-(24); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The advantage of certain evidentiary presumptions, provided by law, that assist Veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from a disease incurred in line of duty during ACDUTRA. The Veteran seeks service connection for hypertension. He asserts that it was diagnosed during a period of ACDUTRA in 1998 or 1999. He has stated that hypertension was the reason he could not deploy following the September 2001 attacks. On VA examination in October 2015, the Veteran's history was reviewed. The Veteran reported that high blood pressure was found during a military check up in 2001, and that at that time, he received a prescription from the military physician. The examiner pointed out that there was no diagnosis of hypertension or its treatment in the available service treatment records. He concluded that the Veteran had essential hypertension, but that he could not give an opinion regarding its exact onset without resorting to mere speculation. He acknowledged the Veteran's report of onset in 1998 or 1999; however, he noted that there was no medical diagnosis of hypertension in the service treatment records. Having carefully reviewed the record, the Board concludes that service connection for hypertension is not warranted. There is current evidence of hypertension. However, there is no credible evidence showing that this disease is associated with the Veteran's initial period of active service. In fact, the Veteran does not assert that his hypertension was incurred in or aggravated by that period of service. Rather, he maintains that hypertension was diagnosed during a period of ACDUTRA. Unfortunately, there is no record of a diagnosis of hypertension during a period of ACDUTRA. The October 2015 VA examiner indicated that he could not give an opinion regarding its exact onset without resorting to mere speculation. He acknowledged the Veteran's report of onset in 1998 or 1999; however, he noted that there was no medical diagnosis of hypertension in the service treatment records. Thus, while the examiner considered the Veteran's contentions, he ultimately concluded that he could not identify a date of onset in the absence of evidence showing an initial diagnosis of hypertension. In assigning high probative value to this examiner's conclusion, the Board notes that he had the claims file for review and specifically discussed evidence contained in the claims file, to include the Veteran's contentions. To the extent that the Veteran asserts that his hypertension is related to ACDUTRA, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of these diagnoses because he does not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As discussed, a VA examiner considered the Veteran's documented history, but ultimately concluded that he could not relate the disease to ACDUTRA in the absence of medical evidence showing onset. As discussed above, the Veteran was advised of the evidence necessary to support his claim, and was further advised that his National Guard unit was unable to locate relevant service treatment records. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. As discussed, the preponderance of the evidence is against a finding of hypertension during ACDUTRA. Accordingly, there is no basis upon which to grant service connection for that disease. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs