Citation Nr: 1753478 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-26 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hypertension, to include as due to herbicide exposure, and including as secondary to service-connected diabetes mellitus, type II (diabetes). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Meehan, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the VA Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied service connection for hypertension. The Veteran testified from St. Louis, Missouri, at a September 2014 Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). The hearing transcript has been associated with the record. In July 2015, the Board remanded the appeal for further development. Pursuant to the July 2015 Board remand instructions, the Veteran underwent a VA examination in April 2016 in order to help determine the etiology of hypertension. The Board finds that there had been substantial compliance with the prior Board remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). The appeal now returns to the Board. FINDINGS OF FACT 1. The Veteran is currently diagnosed with hypertension. 2. The Veteran did not sustain vascular injury or disease during service. 3. Symptoms or impairment of hypertension were not chronic in service or continuous since service. 4. Hypertension did not manifest to a compensable degree within one year of active service. 4. The currently diagnosed hypertension was not caused or worsened in severity by service-connected diabetes. CONCLUSION OF LAW Hypertension was not incurred in active service and may not be presumed to have been incurred in active service, including as secondary to service-connected diabetes. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice was provided to the Veteran in June 2010, prior to the initial adjudication of the service connection claims in August 2010. Pursuant to the notice letter, the Veteran was notified of the evidence not of record that was necessary to substantiate the claims, VA and the Veteran's respective duties for obtaining evidence, and VA's practices in assigning disability ratings and effective dates. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, VA treatment records, private treatment records, VA examination reports, and lay statements. As such, the Board finds that VA took all reasonable efforts to obtain records pertinent to the issues on appeal. VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with a VA examination (the report of which has been associated with the claims file) in April 2016. The Board finds the VA examination report is thorough and adequate and provide a sound basis upon which to base decisions with regard to the service connection issue decided herein. The VA examiner personally interviewed and examined the Veteran, including eliciting a history, conducting a physical examination, reviewed the case file, and offered opinions with adequate rationale. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection Law and Regulation Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, hypertension is a "chronic disease" (cardiovascular disease) under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Hypertension is not a disability subject to presumptive service connection due to herbicide exposure. 38 C.F.R. § 3.309(e). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. Service connection may also be granted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Service Connection for Hypertension The Veteran has advanced that hypertension is directly related to service because of a single elevated reading during service, or in the alternative, is due to herbicide exposure. At the November, 2011 Board videoconference hearing, the Veteran alleged herbicide exposure, and that he had active hypotension during service; however, he also testified that his symptoms started sometime in the 2000s. In the May, 2010 claim, the Veteran advanced that hypertension was secondary to service-connected diabetes. In support of the theory that hypertension started in service, the Veteran indicated the April 1970 blood pressure reading of 140/90 that was taken after receiving treatment for a fractured nose. The Veteran contends that this elevated blood pressure reading proves that hypertension was present during service. In addition, the Veteran provided a statement in April 2010 from his private treating physician stating that the 140/90 reading was "stage I hypertension" and that the hypertension "dates back to at least 1970." After a review of the evidence, the Board finds that there is a current diagnosis of hypertension. Under VA criteria, "hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." 38 C.F.R. § 4.104, Diagnostic Code 7101, n.1 (2017). In addition, "[h]ypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days." Id. The Board next finds that a preponderance of the evidence is against a findings of vascular injury or disease during service or chronic symptoms of hypertension in service. Service treatment records are negative for any complaint, symptoms, diagnosis, or treatment of hypertension during service. The records show a January, 1968 reading of 136/80, an April, 1970 reading of 140/90, and a February, 1971 reading of 120/80. While the April 1970 reading is considered high, as discussed below, this reading was taken immediately after the Veteran suffered a fractured nose and is not indicative of hypertension. Current medical literature provides that one reading is not indicative of the diagnosis of hypertension. These service treatment records appear to be complete, and complaints of hypertensive symptoms would have been recorded had the Veteran sought treatment during service or would have been noted during blood pressure readings while seeking treatment for other symptoms or disorders or upon routine physical examinations. While in service, the Veteran sought treatment for a number of problems, including urethritis, bronchitis, pain while walking, and a facial injury. As the Veteran was willing to seek treatment for these problems, the Veteran would have also sought treatment for cardiovascular disability symptoms or impairment. As a result, the absence of any in-service complaint, finding, or reference to treatment for symptoms or impairment of hypertension is one factor, among others in this case, that weighs against a finding that the Veteran incurred hypertension in service or had chronic symptoms of such during service. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The Board next finds the weight of the evidence demonstrates that symptoms and impairment of hypertension have not been continuous since service separation in February 1971, and did not manifest to a compensable degree within one year of service separation. As noted above, the Veteran was not treated for or diagnosed with hypertension in service, and was first diagnosed with hypertension approximately 36 years after service separation in February 1971. A review of the private treatment (medical) record reveals normal blood pressure readings until approximately June 2004. A formal diagnosis of hypertension was not documented until July 2007 (approximately 36 years after service separation). The Veteran also credibly reports that hypertension symptoms did not begin until the 2000s. The approximately 36 year period between service and the onset of hypertension is one factor that weighs against a finding of service incurrence, including by continuous symptoms since service from which service incurrence would be presumed. See Buchanan, 451 F.3d at 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Additional factors weighing against continuous symptomatology since service include the lack of service treatment records showing any symptoms or impairment of hypertension and the Veteran's own testimony that hypertension symptoms did not manifest until the 2000s. As to the theory of direct service connection, there was only on elevated blood pressure reading in April 1970, but otherwise no in-service vascular injury or disease or relevant symptoms to which the current hypertension could be related. Although the Veteran's private physician purported to opine that the Veteran had stage I hypertension in service, this purported opinion is of no probative value as it lacks factual basis, and does not provide a rationale as to how a single elevated blood pressure reading is sufficient for a diagnosis of hypertension. In regard to presumptive service connection, as noted above, hypertension is not a herbicide presumptive disease under 38 C.F.R. § 3.309(e); therefore, the herbicide presumption not for application in this case. The "chronic" disease presumptions of 38 C.F.R. § 3.303(b) have been applied in this case. The Board next finds that the weight of the evidence is against a finding that the currently diagnosed hypertension was caused or worsened in severity by, that is, was aggravated by, the service-connected diabetes. A VA medical examination was afforded to the Veteran in April 2016, in order to help determine the etiology of the hypertension. In the accompanying report, the examining VA physician opined that, "the claimed [hypertension] condition was less likely than not (less than 50% probability) incurred in or caused by the service. In addition, hypertension was not caused by Diabetes Mellitus or aggravated by it." The VA examiner in April 2016 reasoned that there was only one abnormal reading of blood pressure recorded in all of the service treatment records, and that it is currently understood and backed by medical literature that one high reading does not constitute a diagnosis of high blood pressure. The VA examiner explained that "[t]o make the diagnosis of hypertension, at least three readings that are elevated are usually required." The VA examiner also opined that "hypertension was not caused by Diabetes Mellitus or aggravated by it [because the] Veteran does not have damaged kidneys or proteinuria." Finally the VA examiner opined that "hypertension [was] not caused by Agent Orange," specifically noting that in 2012 the Secretary of the Department of Veteran's Affairs determined no current association between herbicide exposure and hypertension that would warrant a presumption of service connection. The above opinion is supported by a thorough review of the record, an in-person examination and interview with the Veteran, and adequate rationale; thus, the Board assigns the report significant weight and finds it to be highly persuasive. Although the Veteran has asserted that the hypertension is causally related to the service-connected diabetes, the Veteran is a lay person and, under the facts of this case that include no in-service injury or disease or symptoms, no continuous post-service symptoms, and diagnosis decades after service, does not have the requisite medical training or credentials to be able to render a competent opinion regarding the cause of the hypertension. The etiology of the Veteran's hypertension is a complex medical etiological question dealing with the origin and progression of the endocrine and cardiovascular systems, and such a disability is diagnosed primarily on clinical findings and physiological testing. Thus, while the Veteran is competent to report some hypertension symptoms experienced at any time, under the facts of this case, the Veteran is not competent to opine on whether there is a link between hypertension and the service-connected diabetes. See Kahana, 24 Vet. App. at. 438 (recognizing that lay competency is determined on a case by case basis); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). For these reasons, the Board finds that the weight of the evidence is against direct, presumptive, or secondary service connection for hypertension under the provisions of 38 C.F.R. §§ 3.303, 3.307, 3.309, and 3.310. As the preponderance of the evidence is against service connection, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs