Citation Nr: 1805174 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-30 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1959 to January 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's hypertension did not manifest in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, and is not etiologically related to his active service CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by an August 2009 letter. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, and VA medical records. The Veteran has not identified any outstanding records needing to be obtained. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The May 2016 VA examiner performed an in-person examination and reviewed the claims file in November 2016 and August 2017. The VA examiner provided clear explanations in support of the opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The VA examination and accompanying medical opinions are adequate to decide the Veteran's claim. The claim was remanded in July 2017 for an addendum VA opinion and to retrieve service treatment records the Veteran alleged were missing. The VA examiner issued an addendum opinion in August 2017 that is factually informed, medically competent and responsive to the Board's inquiry. Further, the RO retrieved all of the Veteran's service treatment records and military personnel records. Therefore, there is substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). VA has satisfied its duties to notify and assist. The Board may proceed with appellate review. Service Connection for Hypertension Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). "Hypertension" refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm Hg systolic and 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic as reflective of hypertension. See Dorland's Illustrated Medical Dictionary, 896 (32nd ed. 2012). Similarly, for VA rating purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm Hg or greater. The term "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mm Hg or greater with a diastolic blood pressure of less than 90 mm Hg. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. Hypertension, as a cardiovascular-renal disease, is a "chronic disease" listed 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). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, 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, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive 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. Id. In deciding an 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Veteran has a current diagnosis of hypertension. However, the preponderance of the evidence is against the Veteran's claim. The Veteran had elevated blood pressure readings upon entrance examination in February 1959 (148/52), and upon separation examination in January 1963 (136/104). As to the latter, service department medical examiners made no comment on the blood pressure reading. The Veteran's treatment records are otherwise absent of any mention of the Veteran's blood pressure, outside of these two isolated readings. The Veteran and his spouse contend that he was diagnosed with hypertension in 1963, shortly after separating from service. However, the record does not contain any competent medical evidence to support this assertion, nor is there any evidence that the Veteran had diagnosed hypertension within the presumptive period or shortly thereafter. The record contains a June 2007 notation authored by Roger Hicks, M.D. of the Yubadocs Medical Group. It indicates in relevant part that the Veteran, then being treated for a right knee injury, reported that he had been diagnosed with hypertension in 1991, almost 30 years after he was discharged from active duty. The absence of such in-service and post-service findings is one factor that tends to weigh against a finding that the hypertension began during service. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (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 documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Further, the Veteran indicated that he was seen in service for tonsillitis and was informed that his blood pressure was elevated. However, the July 1960 service treatment record noting his treatment for tonsillitis is absent of any mention of elevated blood pressure. The Veteran is competent to report medical diagnoses a doctor has told him. See Layno, 6 Vet. App. 465, 469. However, while the Veteran has attempted to establish a nexus through his own lay assertions or those of his spouse, neither the Veteran nor his spouse are competent to offer opinions as to the etiology of hypertension due to the medical complexity of the matter involved. Hypertension requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and service. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Upon VA examination in May 2016, the VA examiner opined that the Veteran's hypertension was not etiologically related to his active service. Specifically, the examiner noted that the Veteran had an elevated blood pressure reading during his separation examination, but indicated that multiple office visits are necessary to diagnose high blood pressure to assure a high reading is not in error. The examiner also indicated that the veteran's elevated diastolic blood pressure on his exit examination would most likely be an isolated event due to the fact he was 21 years of age, was not obese, and had no other known risk factors. The examiner concluded that to state that the Veteran had high blood pressure from one isolated reading is purely speculative. The examiner also indicated that there is no medical evidence to state the Veteran developed hypertension one year after separation from service. In a November 2016 addendum opinion, the VA examiner reiterated her opinion that the Veteran's hypertension was not etiologically related to his active service, as there are no medical records after the Veteran's separation from service to indicate the presence of diagnosable high blood pressure prior to 2007. The examiner also indicated that stress can be considered a cause of hypertension, such as in events of an entrance or exit from the military. In an August 2017 addendum opinion, the VA examiner again reiterated her opinion that the Veteran's hypertension was not etiologically related to his active service. Again, the examiner noted the Veteran's elevated blood pressure readings at entrance and at separation, but indicated that these measurements were too far apart and reported in stressful events to state the veteran had the diagnosis of hypertension while in the military. The VA examiner provided opinions that preponderate against the Veteran's claim. The opinions provided by the VA examiner are competent and probative evidence. The VA examiner provided the Veteran with an in-person examination, reviewed the claims file and provided medical opinions supported by adequate rationale. As the preponderance of the evidence demonstrates that the Veteran did not experience chronic symptoms of hypertension in service, continuous symptoms since service, or compensable manifestations within one year of service separation, presumptive service connection for hypertension may not be established. See 38 C.F.R. §§ 3.303, 3.307, 3.309. In a September 2010 letter, Mara Berezniak, D.O. opined that the Veteran's hypertension was as likely as not caused by his active service. However, Dr. Berezniak did not provide an adequate rationale in support of the opinion. As a result, this opinion is less probative than that provided by the May 2016 VA examiner. The Veteran has also argued that his service treatment records may be incomplete and, as noted, that he was diagnosed with the disorder shortly after service discharge. As noted above, the earliest indication of a diagnosis apparently emanated from the Veteran, who provided information indicating that he was so diagnosed in 1991. To find an earlier date of diagnosis based on the Veteran's present lay accounts coupled with his earlier account of the 1991 date would be speculative. Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Absent competent, credible, and probative evidence of a nexus between the Veteran's service and his hypertension, the Board finds that the hypertension is not etiologically related to service. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Accordingly, service connection for hypertension is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for hypertension is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs