Citation Nr: 1804979 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-05 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Monrose, Associate Counsel INTRODUCTION The Veteran had a period of honorable active service from April 1978 to April 1981. He also had service from February 1990 to February 1993, which resulted in an other than honorable discharge. A July 2003 VA administrative decision concluded that the Veteran's discharge for the period from February 14, 1990 through February 25, 1993 was a bar to VA benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction subsequently transferred to the Chicago, Illinois RO. In September 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been prepared and associated with the claims file. In March 2016, the Board reopened the Veteran's service connection claim for hypertension. In addition, this appeal was remanded for further development. FINDING OF FACT The Veteran's hypertension was not present during service or within the first post-service year, and it is not otherwise causally or etiologically related to his active military service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1111, 1112, 1131, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the March 2016 remand, the Board directed the RO to contact the National Personnel Records Center regarding purported hospital records while the Veteran was stationed in Okinawa, Japan and Seoul, Korea from 1978 to 1979. A negative response was provided. The Veteran was notified in writing that his medical records from Japan and Korea were unavailable in September 2016. The RO sought to obtain the Veteran's medical records from the San Diego VA, but received a negative response in September 2016. The Veteran was notified via telephone that his San Diego VA medical records were unavailable in September 2016. In light of the foregoing, the Board finds that no further efforts to develop the record is necessary, and the Board may proceed with consideration of the Veteran's claim on the merits. Generally, 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). The Veteran contends that his current hypertension is related to his military service. He reports that he had symptoms of hypertension during his first period of service, to include headaches and lightheadedness, and that he was treated for high blood pressure prior to his separation from active duty in April 1981. See September 2015 Hearing Transcript. The Veteran also reports that he has been treated for hypertension continuously since 1981. He asserts that two weeks after discharge, he experienced headaches and lightheadedness, and that he went to VAMC Westside in Chicago, where he was diagnosed with hypertension and put on medication. See September 2015 Hearing Transcript; January 2005 VA Form 21-4142. He also asserts that he was treated at the San Diego VAMC from 1982 until 1988, when he moved back to Chicago. See September 2015 Hearing Transcript. Service treatment records from the Veteran's first period of service contain no complaints related to headaches or lightheadedness, and they do not reflect a diagnosis of hypertension. An April 1978 enlistment examination shows that the Veteran's blood pressure was 150/70. A May 1978 service treatment record shows that the Veteran's blood pressure was 112/60. There is no separation Report of Medical History included in the Veteran's service treatment records; however, during the Veteran's March 1981 discharge examination, the Veteran's blood pressure was 130/70. In March 2005, the Veteran submitted a copy of his March 1981 discharge examination report, which purports to show that the Veteran's blood pressure on discharge was 180/90. However, as noted above, the original examination report is of record, and it shows that the Veteran's blood pressure on discharge was 130/70. The Board acknowledges the argument of the Veteran's representative that it is not possible to determine whether the document has been altered because the original is "so degraded." See September 2015 Hearing Transcript. Additionally, the Board notes that the Veteran's service treatment records are relatively degraded and illegible in some places. However, the AOJ went so far as to have copies of the Veteran's official March 1981 discharge examination enlarged, and it is abundantly clear that the Veteran's blood pressure on discharge was 130/70. Consequently, the Board will rely upon the versions of the service treatment records obtained through official channels. In August 2009, the Veteran submitted four statements from Marines with whom he served during his first period of service. D.B. reported that in December 1978, the Veteran was evacuated via helicopter to Seoul, Korea for frostbite and "learned he had high blood pressure." D.B. also indicated that the Veteran has "been treated for these symptoms ever since." F.H. indicated that he was stationed at Camp Pendleton with the Veteran in 1980. F.H. reported that the Veteran was being treated for high blood pressure. F.H. also indicated that he "escorted [the Veteran] to sick call on many occasions." J.G. indicated that the Veteran was "constantly going to sick call for hypertension" and that he took pills for hypertension while in service. C.G. reported that he served with the Veteran from 1979 until 1981 and that "the entire time, [the Veteran] was being treated for hypertension." Post-service VA treatment records indicate that the Veteran has a history of hypertension and is currently being treated with blood pressure medication. In various statements, the Veteran asserts that he was first diagnosed with hypertension at the Jesse Brown (Chicago) VAMC in 1981, within a few weeks of service discharge. In October 2002, after the Veteran filed his initial service connection claim, the AOJ attempted to obtain records from the Jesse Brown VAMC dated from 1981 to 2002, but they were unsuccessful. In January 2005, the AOJ again attempted to obtain the VA treatment records. In response, the VAMC indicated that "No information located for the specified time period. No retired records." In January 2005, the AOJ issued a formal finding of unavailability of VA treatment records. Thereafter, in May 2009, the AOJ received treatment records from the Jesse Brown VAMC dated from October 1988. An October 1988 record shows that the Veteran requested a "statement that blood pressure is o.k. for [him] to return to active duty." Blood pressure readings on that date were 130/84 and 130/98, and the Veteran was prescribed medication. He returned to the VAMC a week later, where he was diagnosed with diastolic hypertension, and his medications were adjusted. The Veteran continued to be evaluated on a weekly basis for three more weeks, and at each visit, his blood pressure was checked and his medications adjusted. Thereafter, the Veteran received medication for hypertension in February 1989, December 1989, and January 1990. In an August 2009 statement, the Veteran's friend, C.G., reported that he served in the Marines with the Veteran from 1979 to 1981. C.G. indicated that after the military, he remained friends with the Veteran and even became the Veteran's neighbor. C.G. also reported that the Veteran sought medical attention from the VA for hypertension after discharge and that he (C.G.) "even went with [the Veteran] a couple of time[s] to pick up his pills from the VA." The Board notes that according to the August 2009 statement, C.G. currently lives in Oceanside, CA. During the September 2015 hearing, the Veteran testified that he was first diagnosed with hypertension at the Chicago VAMC in 1981 and that he has been on medication for hypertension since that time. He also indicated that the only medical organization from which he has received hypertension medication has been the VA. The Veteran also testified that he moved back to San Diego in early 1982, where he continued to receive treatment for hypertension. The Veteran reported that he remained in San Diego until 1988, when he moved back to Chicago. This was the first time that the Veteran reported receiving treatment for hypertension at the San Diego VAMC. The Veteran contends that his hypertension was incurred while he was in the military. For the reasons stated below, the Board is not persuaded. The Veteran has a current diagnosis of hypertension. See San Diego VA Medical Center (VAMC) medical records dated July 2008 and Westside VAMC medical records dated July 2014. The evidence of record, however, does not persuasively show symptoms consistent with hypertension manifested during his military service. The Veteran's STRs do not show complaints, treatments, or diagnosis of any hypertension. Crucially, a March 1981 separation examination shows that the Veteran had a blood pressure reading of 130/70, and he was not noted to have or have a history of hypertension. The Board has considered the lay statements from the Veteran's military comrades. In various statements, the Veteran and four other Marines indicated their belief that he was diagnosed and treated for hypertension while in the military. See statements dated July and August 2009 and the September 2017 Appellate Brief. Given the extent to which the assertions allege the Veteran was treated in service, it does not appear plausible to the Board that documentation of such extensive treatment would not appear in the service treatment records if in fact such treatment occurred. The condition of hypertension is a serious enough condition that would be expected to be noted on the separation medical examination report if in fact the condition was present. Unfortunately, the credibility of the lay evidence of record has been called in to question due to the Veteran's submission of a copy of his March 1981 discharge examination report which purported to show that his blood pressure on discharge was 180/90 when in fact the original examination report shows that the Veteran's blood pressure on discharge was 130/70. For these reasons, the Board finds that the evidence contemporaneous to the Veteran's service is more reliable and probative. Consequently, the Board finds that there is no credible evidence that the Veteran had hypertension in service or symptoms of hypertension in service. For certain chronic disorders, including hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). As noted above, the Veteran also contends that he was diagnosed with hypertension within a year of his discharge from service. Again, for the same reason set forth above, the credibility of the lay evidence of record has been called in question. Consequently, the Board places more probative value on the objective medical evidence of record. The available medical records show that the Veteran was diagnosed with diastolic hypertension (i.e. 140/100) in October 1988, more than seven years after he left the military. See Westside VA medical records. The Board finds that there is insufficient reliable evidence to substantiate that the Veteran's hypertension manifested to a compensable degree within one year of his discharge from service. The evidence has not been placed in relative equipoise. Thus, the Board finds that service connection for the Veteran's hypertension is not warranted on a presumptive basis as a chronic disease under 38 C.F.R. 3.309(a). See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (explicitly rejecting the argument that "the Board must accept the veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding that the Board must determine "the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs