Citation Nr: 1758058	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  09-32 470A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	Carl Price, Agent


WITNESSES AT HEARINGS ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from November 1967 to September 1968 for which he received an honorable discharge, and from September 1968 to April 1970 for which he was discharged under honorable conditions.  Further, it is noted the record reflects his active service included duty in the Republic of Vietnam.

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran provided testimony at a hearing before personnel at the RO in July 2012, and before the undersigned Veterans Law Judge (VLJ) in November 2016.  Transcripts of both hearings are of record.

In March 2017, the Board remanded the hypertension claim for further development.  The case has now been returned to the Board for additional appellate consideration.

As an additional matter, the Board notes that the issues of entitlement to compensation under 38 U.S.C.A. § 1151 for loss of ability to walk and heel ulcer, as well as assistance in acquiring specially adapted housing or a special home adaptation, have been raised by the record in documents received in September 2017, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).






FINDINGS OF FACT

1.  The record reflects the Veteran did not report for a VA examination scheduled in July 2017 regarding his hypertension claim, and no good cause has been demonstrated for why he did not report.

2.  The first competent medical evidence of hypertension was years after the Veteran's separation from service; and the record does not reflect his hypertension was incurred in or otherwise the result of his active service, to include presumed in-service exposure to herbicide agents, or that it is secondary to a service-connected disability.


CONCLUSION OF LAW

The criteria for a grant of service connection for hypertension are not met.  38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.326, 3.655 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

Regarding the duty to assist, the Board acknowledges that it  remanded the case in March 2017 to accord the Veteran a competent medical examination to address the etiology of his hypertension.  Pursuant to 38 C.F.R. § 3.326(a), individuals for whom examinations have been authorized and scheduled are required to report for such examinations.  The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations.  That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken.  At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.

A review of the record reflects that such an examination was scheduled for July 2017, but the Veteran did not report for that examination.  A review of the record reflects that correspondence was mailed to the Veteran regarding this examination in June 2017.  Further, there is note that two attempts were made to call the Veteran's phone number about the examination that same month, but there was no answer and he did not have voicemail.  As such, it appears adequate steps were undertaken to inform the Veteran of the scheduled examination.  See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (In the normal course of events, it is the burden of the veteran to keep the VA apprised of his whereabouts.  If he does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him.).

The Board further notes that the July 2017 Supplemental Statement of the Case (SSOC) discussed the consequences of the Veteran's failure to appear for the scheduled examination.  However, while additional communication has been received by and on behalf of the Veteran, no good cause has been alleged for not reporting for that examination.  In fact, a written statement from his accredited representative submitted in response to the SSOC noted he wished to continue the appeal to the Board, but no mention was made of why he did not report for the scheduled examination.  Therefore, in accord with 38 C.F.R. § 3.655, the Board must adjudicate the case based upon the evidence of record.

In view of the foregoing, the Board finds that the duty to assist has been satisfied to the extent permitted by the cooperation of the Veteran.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (The duty to assist is not a "one-way street."  If the veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.).  Moreover, the Board notes the Veteran has not otherwise identified any deficiency regarding the notification and assistance he has received in this case, or in the conduct of July 2012 and November 2016 hearings.  Accordingly, the Board need not search for, or address, any such argument.  See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015).  The Board will therefore proceed to the merits of the appeal.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Service connection may also be established for certain chronic diseases such as hypertension that are present to a compensable degree within the first post-service year.  See 38 C.F.R. §§ 3.307, 3.309(a).  

Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90.  See 38 C.F.R. § 4.104, Diagnostic Code 7101.  As such, hypertension requires specific medical testing to diagnose and is thus not a disability capable of lay observation.  Indeed, even a physician is unable to diagnose hypertension without conducting diagnostic testing.

The Board notes that the Veteran's service treatment records do not show a diagnosis of or treatment for hypertension while on active duty.  Further, the Veteran denied high or low blood pressure on a Report of Medical History completed concurrent to his September 1970 separation examination.  The separation examination itself shows a blood pressure reading of 100/68 (systolic/diastolic).  Moreover, the first competent medical evidence of hypertension appears to be years after the Veteran's separation from service.

Inasmuch as the first competent medical evidence of hypertension was years after service, the Veteran is clearly not entitled to a grant of service connection pursuant to the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309(a).  Further, the Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service can be probative evidence against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.).

The Veteran has contended, in part, that his hypertension is secondary to his service-connected diabetes mellitus and/or coronary artery disease.  He has also indicated that it is related to his presumed in-service exposure to herbicide agents from his active service in the Republic of Vietnam.  See 38 U.S.C.A. § 1116.  Agent Orange is generally considered a herbicide agent and will be so considered in this decision.

The Board notes that hypertension is not one of the conditions recognized by VA as being presumptively associated with herbicide exposure.  See 38 C.F.R. § 3.309(e).  However, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange (i.e., herbicides) does not preclude direct service connection for other conditions based on exposure to Agent Orange).  Nevertheless, as VA's current position based upon review of available medical and scientific information is that no presumptive relationship is warranted for hypertension, the Board finds that competent medical evidence is required to support such a finding.

Similarly, the Board finds that competent medical evidence is required to support the claim of secondary service connection.  The effect one disability has upon another involves complex medical issues which generally require competent medical evidence to resolve.  Further, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that the claimant's own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination.  If such a contention is not sufficient to warrant a medical examination, it is clear that it is not sufficient to warrant a grant of service connection.

Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, his contentions cannot constitute competent medical evidence.  38 C.F.R. 
§ 3.159(a)(1).  Moreover, no competent medical evidence is of record which supports the Veteran's contentions; i.e., the record does not reflect his hypertension was incurred in or otherwise the result of his active service, to include presumed in-service exposure to herbicide agents, or that it is secondary to a service-connected disability.

Inasmuch as the Board is required to adjudicate this case based upon the evidence of record, it must find that the preponderance of the evidence is against the claim of service connection for hypertension due to the lack of in-service findings and for years after service, as well as the lack of supporting competent medical evidence.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Consequently, the benefit sought on appeal must be denied.








ORDER

Service connection for hypertension is denied.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs