Citation Nr: 1756898 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-29 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as secondary to a psychiatric disability. [The issue of service connection for left ear hearing loss is also on appeal and will be the subject of a separate decision under the same docket number.] REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty in the Army from January 1969 to November 1971, with additional subsequent service in the Army Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2013, a Travel Board hearing was held before the undersigned; a transcript is associated with the claims file. In January 2015 and July 2016, the Board remanded the case to the RO for additional development. Although the Veteran filed a claim of service connection for PTSD specifically, as will be discussed more fully below, his claim is interpreted as also encompassing psychiatric diagnoses other than PTSD, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given what is shown by the medical evidence in the record, the Board is considering "alternative current conditions within the scope of the filed [PTSD] claim." Clemons, 23 Vet. App. at 5. The issue listed in brackets on page 1 also flows from the October 2010 rating decision of the Philadelphia RO, and is docketed under the same docket number, but the Veteran is represented in that matter by a private attorney. It will be the subject of a separate decision. FINDINGS OF FACT 1. There is no competent and credible evidence that the Veteran has a psychiatric disability to include PTSD. 2. The Veteran's currently diagnosed hypertension was not manifested during his active military service or to a compensable degree within one year following active service, and it is not shown to be related to an injury, disease, or event in service. CONCLUSIONS OF LAW 1. Service connection for a psychiatric disability, claimed as PTSD, is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. Service connection for hypertension, to include as secondary to a psychiatric disability, is not warranted. 38 U.S.C. §§ 101, 106, 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309 (2017). 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. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the RO provided adequate pre-adjudication VCAA notice by letters dated in June 2010 (for hypertension), August 2010 (for a psychiatric disability including PTSD), and February 2013 (for hypertension and PTSD), VA has satisfied its duty to notify. Under 38 U.S.C. § 5103A, VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA has made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A (a), (b) and (c). The Veteran was afforded a Board hearing before the undersigned in October 2013. The Court has held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts the hearing has the duty to fully explain the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the undersigned explained the issues, focused on the elements necessary to substantiate the claims (e.g., a current diagnosis of a psychiatric disability, and evidence that the current hypertension is related to service), and sought to identify any further development that was required to substantiate the claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The RO has obtained the Veteran's service treatment and personnel records (STRs and SPRs) and pertinent post-service VA treatment records and medical records from his post-service employer (Philadelphia Gas Works). VA has also conducted necessary medical examinations in an effort to substantiate the claims. 38 U.S.C. § 5103A (d). The Veteran underwent VA examinations in September 2010 (regarding a psychiatric disability) and April 2015 (regarding a psychiatric disability and hypertension). The psychiatric reports contain the Veteran's medical history, findings noted, and an opinion with rationale supporting the conclusions reached. Consequently, the Board finds that the reports are adequate to decide the psychiatric claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). Regarding the hypertension claim, the 2015 examiner confirmed a current diagnosis of hypertension and noted the Veteran's report of a history of borderline hypertension since 1983, but did not furnish an opinion on the etiology of the present hypertension. Further development for a medical opinion is not required because there is no record of hypertension, or symptoms or complaints thereof, during active service or for years after service discharge in 1971, nor has the Veteran alleged that hypertension initially manifested during active service including ACDUTRA. Rather, he appears to be attributing a current diagnosis of hypertension to his Vietnam service, mostly it appears on a secondary basis to a psychiatric disability that he alleges is attributable to his Vietnam service. As will be discussed further, he does not have a diagnosis of a psychiatric disability. In light of the foregoing, the Board finds that an examination to secure an opinion regarding a nexus between a current diagnosis of hypertension and service or service-connected disability is not required under the duty to assist. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In short, VA's duty to assist has been met, and it is not prejudicial for the Board to proceed with appellate review. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. If a veteran served 90 days or more of continuous, active service and a listed chronic disease (to include psychosis and hypertension) becomes manifest to a degree of 10 percent within a specified period of time following separation (one year for these diseases), 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. § 1112; 38 C.F.R. §§ 3.307, 3.309. The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) 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 (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. § 101(24), 106, 1110. Stated another way, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. 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. § 101(2)-(24). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(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." Continuity of symptoms is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection for PTSD, a claimant must submit medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Hypertension is defined by VA regulation to mean "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. § 4.101, Diagnostic Code 7101, Note (1). Hypertension "must be confirmed by readings taken two or more times on at least three different days." Id. Hypertension is compensable at a 10 percent rating when diastolic blood pressure is predominantly 100 or systolic pressure is predominantly 160 or more; or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Id. Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the service connection claims. The Veteran served on active duty in the Army from January 1969 to November 1971, which included a tour of duty in Vietnam from May 1970 to April 1971. His awards included the National Defense Service Medal, Parachute Badge, Army Commendation Medal, Vietnam Campaign Medical with 60 device, Vietnam Service Medal, Bronze Star Medal, and Driver Badge. His military occupational specialty was a field wireman. He also had subsequent service in the Army Reserves from 1978 until 2001. STRs from the Veteran's active duty service (1969 to 1971) do not show any complaints, diagnosis, or treatment for a psychiatric disability or hypertension, including on a November 1971 separation examination (when his blood pressure was 120/74, and he denied a history of high blood pressure). STRs from the Veteran's Reserve service (1978 to 2001) show that on an enlistment physical examination in August 1978, psychiatric and vascular clinical evaluations were normal; blood pressure was 136/80. In a contemporaneous Report of Medical History, he denied high blood pressure, depression or excessive worry, loss of memory, or nervous trouble of any sort. Similar findings were recorded on periodic physical examinations in October 1982 (with blood pressure of 120/82) and in March 1988 (with blood pressure of 128/84). On an October 1993 physical examination, the Veteran's blood pressure readings were 162/92, 142/92, and 122/88, and he was given a diagnosis of labile hypertension, "reports normalized." Other Reserve records show that over the course of a three-day period from August to September 1985, when he was being treated for a severe reaction to poison ivy over his body, the Veteran's blood pressure readings were 116/80, 130/90, 100/70, and 121/91 on the first day, 112/84 and 150/108 on the second day, and 144/80 on third day. A diagnosis of hypertension was not made. Other blood pressure readings included 118/68 in October 1985 and 115/80 in August 1986. On his last physical examination in January 2001, psychiatric clinical evaluation was normal; the Veteran's blood pressure was 163/90. After service, the Veteran initially filed an application for service connection for hypertension in May 2010 and a claim of service connection for PTSD in July 2010. In a statement in support of claim for service connection for PTSD received in November 2010, he described two stressful incidents that occurred while he was serving in Vietnam on active duty: an event where a mine exploded and a soldier was blown up, and an event while on guard duty when he assisted in unloading bodies of South Vietnamese civilians from a truck that had been fired upon. At a Board hearing in October 2013, the Veteran described one of these stressor events during service in Vietnam, and indicated his understanding that one of the elements required to establish service connection was to have a current diagnosis of a psychiatric disability (the record at that time failed to show evidence of a psychiatric diagnosis, and the Veteran appeared unwilling to seek a medical opinion that he had a psychiatric disability). As to his hypertension claim, the Veteran testified that he began to receive treatment for hypertension in 1993, although long before then he was told by doctors on annual employee physical examinations that he should seek treatment for his condition. He stated that he never went to a doctor for his condition, and seldom went to doctors at all, even in the military. He felt that his hypertension had "a lot to do with" being afraid during his entire tour of duty in Vietnam. Private treatment records on file from Philadelphia Gas Works (the Veteran's former employer), which are dated from January 1973 to 2009, show that the Veteran underwent periodic examinations for various complaints. They do not show a diagnosis or treatment of a psychiatric disability to include PTSD. His blood pressure readings were shown as follows: 120/80 in January 1973, 140/84 in August 1982, 120/86 and 130/82 in October 1983, 122/90 in May 1984, 140/80 in July 1984, 120/88 in September 1984, 112/76 in November 1984, 120/80 in January 1985, 124/82 in January 1986, 110/80 and 134/94 in July 1988, and 128/84 in January 1998. He denied having high blood pressure on respirator questionnaires in October 1997, October 2004, and September 2009. [He reportedly retired from his job in January 2010.] On September 2010 VA PTSD examination, the Veteran reported that he had never been under psychiatric care, received treatment in therapy, or used psychotropic medication. The evaluation included discussion of stressor events in Vietnam (including those previously mentioned above). The examiner concluded that the Veteran did not meet the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)) criteria for PTSD, although he did experience some symptoms of the disorder, and that there were no other Axis I mental health disorders. On April 2015 VA psychiatric examination, the Veteran reported two stressors from his Vietnam service, describing events when he came under enemy fire when he was tasked with evacuating a radio relay station and when he was tasked with extracting bodies of Vietnamese civilians from a vehicle. While recognizing that the Veteran appeared to have substantial stressors during the course of his Vietnam tour of duty, the examiner stated that the Veteran did not have a diagnosis of PTSD or any other mental disorder that conformed to the criteria in either DSM-IV or DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th ed. 2013). On April 2015 VA hypertension examination, it was noted in the medical history section, that the approximate date of the Veteran's initial diagnosis of hypertension was 2002, when he began taking medication for the condition (this conflicts with the Veteran's 2013 hearing testimony when he indicated he began treatment in 1993 but had had symptoms long before then). The Veteran also reported that he had a history of borderline hypertension noted since 1983 on physical examinations every three years with his employer (Philadelphia Gas Works) but that he was not treated by his primary care physician until 2002. He currently took medication for hypertension. It was reported that his blood pressure readings that month were 136/90 and 141/97. VA outpatient records, dated from 2010 to 2015, do not reflect treatment for hypertension or a psychiatric disability. Analysis - Psychiatric Disability, Including PTSD As seen in the facts above, there is no record showing an actual diagnosis or finding of a psychiatric disability to include PTSD. While the Veteran initially filed a claim of service connection for PTSD, and 2010 and 2015 VA examiners found that he had some symptoms of PTSD and substantial stressors, they nonetheless concluded that he did not meet the criteria for a diagnosis of PTSD or any other mental disability. There are no other opinions of record that address the question of his current psychiatric status. After reviewing the pertinent evidence including STRs, private medical records, VA treatment records, statements of the Veteran and hearing testimony, the Board finds that there is no medical evidence of a diagnosis of a psychiatric disability to include PTSD in the record, which is a threshold critical element to substantiate a claim of service connection. At his hearing, the Veteran acknowledged the need for a diagnosis of a psychiatric disability as one of the requirements for establishing entitlement to service connection. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case - whether there is a current diagnosis of a psychiatric disability to include PTSD which can be related to service - falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, any assertions by the Veteran as to diagnosis and causation have no probative value. As the record now stands, post-service evidence does not show a diagnosis of a psychiatric disability to include PTSD. The threshold requirement in any claim of service connection is that the Veteran must have proof he has the claimed condition. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (clarifying that the requirement of a current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Here, in the absence of satisfactory proof that the Veteran has a current diagnosis of a psychiatric disability to include PTSD, there is no valid claim of service connection for such disability. The preponderance of the evidence is against this claim. Therefore, the benefit-of-the-doubt rule does not apply, and the claim of service connection for a psychiatric disability to include PTSD must be denied. See 38 U.S.C. §5107. Analysis - Hypertension As noted in the facts above, the Veteran had a period of active duty from January 1969 to November 1971; all other service was ACDUTRA or INACDUTRA in the Reserves. Service connection may be granted for disease incurred while on ACDUTRA, but not for disease incurred while on INACDUTRA other than acute myocardial infarction, cardiac arrest, or cerebrovascular accident. See 38 U.S.C. § 101(24). Review of the Veteran's STRs found that hypertension was not manifested during his active service from 1969 to 1971. There was no treatment, complaint, or diagnosis related to high blood pressure or hypertension during the active service, and on separation physical examination in November 1971 the Veteran's clinical evaluation and blood pressure were normal. As for the Veteran's Reserve service, there is no evidence that he suffered a myocardial infarction, cardiac arrest, or cerebrovascular accident during any INACDUTRA service, or that hypertension was initially manifested on ACDUTRA. A diagnosis of labile hypertension was noted in October 1993 when blood pressure readings were elevated, but it was noted that the readings normalized thereafter. He also was noted to have elevated readings while having a severe reaction to poison ivy many years earlier in August 1985, but those readings also normalized and hypertension was not then diagnosed. (It is not clear if this was a period of ACDUTRA.) A January 2001 physical examination showed a single, elevated reading, but there is no diagnosis of hypertension. In any case, the Veteran claimed that by the time of the 2001 examination he had already been receiving treatment for hypertension for many years. Notably, he has not specifically claimed that hypertension was initially manifested during a period of ACDUTRA, and his Reserve records do not so reflect. Thus, on the basis of STRs alone, hypertension is not affirmatively shown to have been manifested during service. Thus, service connection for hypertension under 38 U.S.C. §§ 101,106, 1110; 38 C.F.R. §§ 3.6, 3.303(a) is not warranted. The Veteran is competent to describe certain symptom manifestations of a claimed disability even though the symptoms were not recorded during service, but as the STRs lack the documentation of the combination of manifestations sufficient to identify hypertension and sufficient observation to establish chronicity during service, and as chronicity in service is not adequately supported by the STRs, then a showing of continuity of symptoms after service is required to support the claim. 38 C.F.R. § 3.303(b). However, the evidence does not establish continuity of symptoms after service to support the Veteran's claim. As previously noted, there is no showing of hypertension at the time of his discharge from active duty in November 1971, as indicated by the physical examination report at that time. Moreover, he has not claimed that symptoms of his current hypertension initially manifested during service or continued ever since service. The medical records are ambiguous as to when he initially received a diagnosis of hypertension. In any case, the medical records on file do not show high blood pressure problems for many years after his service discharge in November 1971. Thus, continuity of symptoms has not been established, either by the clinical record or by the statements of the Veteran. The preponderance of the evidence is against the claim of service connection for hypertension based on continuity of symptoms under 38 C.F.R. § 3.303(b). Further, as the private and VA medical records do not show that an initial diagnosis of hypertension was made until many years after his service separation in 1971, which is beyond the one year presumptive period for hypertension as a chronic disease under 38 U.S.C. § 1112 and 38 C.F.R. §§ 3.307 and 3.309, service connection for hypertension on a chronic disease presumptive basis is not established. The Board turns to the question of whether service connection for hypertension may be granted under 38 C.F.R. § 3.303(d) (direct service connection) on the basis that although it was first diagnosed after service, considering all the evidence, including that pertinent to service it is shown to have been incurred in service. As was earlier noted, the Veteran's medical records show that he has a current diagnosis of hypertension, and that it was shown to have manifested more than a year after separation from service in November 1971. Moreover, the STRs do not show that hypertension initially manifested during a period of ACDUTRA. The Board finds that the preponderance of the evidence is against this direct service connection theory of entitlement. There is no medical opinion in the record that relates the Veteran's hypertension directly to his service; the Veteran has not submitted any such evidence, nor has he suggested that such an opinion exists. In short, there is no competent evidence that his hypertension, first documented after service (and far beyond the one-year presumptive period for chronic diseases), is otherwise related to an injury, disease, or event in service. 38 C.F.R. § 3.303(d). The only evidence that relates the Veteran's current hypertension to service is his own lay statements. He seems to be arguing that his hypertension is related to stressful experiences during his service in Vietnam. To the extent the Veteran asserts that there is an association between his hypertension and service, his opinion as a layperson is limited to inferences that are rationally based on his perception and does not require specialized education, training, or experience. See 38 C.F.R. § 3.159(a) (defining competent lay and medical evidence). Although he is competent to describe symptoms of hypertension, see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of personal knowledge), the claimed disability is not a condition found under caselaw to be capable of lay observation, i.e., the determination as to its presence is medical in nature and not capable of lay observation. Further, the question of whether the claimed disability is the result of the conditions of service is a complex medical question beyond the realm of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the question of service connection. Therefore, to the extent his statements are offered as proof of a relationship between current hypertension and his period of service, the statements are not competent evidence and must be excluded; they cannot be considered competent evidence favorable to the claim. The Board acknowledges the Veteran's belief that his hypertension had "a lot to do with" being afraid during his entire tour of duty in Vietnam. His hypertension claim is predicated, in part, on it being secondary to PTSD. However, his claim on a secondary basis under 38 C.F.R. § 3.310 has no merit because service connection has not been established for PTSD (or for any other psychiatric disability). In view of the foregoing, the preponderance of the evidence is against the claim of service connection for hypertension. The benefit-of-the-doubt standard of proof does not apply; the appeal in this matter must be denied. ORDER Service connection for a psychiatric disability, claimed as PTSD, is denied. Service connection for hypertension, to include as secondary to a psychiatric disability, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs