Citation Nr: 1805176 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 08-38 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 10 percent for postsurgical scar of the left knee. REPRESENTATION Appellant represented by: Jan D. Dils, Attorney ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to April 1970 and from April 1971 to June 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board remanded these matters for further development in September 2010, October 2015, August 2016, and September 2017. The issue of an initial rating in excess of 10 percent for postsurgical scar of the left knee is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Hypertension was not shown in active service or for many years thereafter, and the only medical opinions of evidence to address the etiology of hypertension weigh against the claim. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board notes that in his August 2016 Informal Hearing Presentation (IHP), the Veteran, through his representative, indicated that the examiner who performed the May 2014 and December 2015 VA examinations was not in compliance with the Board's October 2015 remand directives, as the examiner was the same for both examinations. The Board notes that the Veteran has been afforded two additional VA examinations, one records-only, since the August 2016 IHP, both of which were performed by different examiners. As such, the Board considers the Veteran's concerns regarding the remand directives of the Board satisfied. Factual Background In May 1966, the Veteran's enlistment service treatment record (STR) indicated he did not have issues or symptoms concerning his vascular system or heart. His blood pressure was recorded at 134/88. In September 1975, an STR recorded the Veteran's blood pressure as 110/60. In January 1986, an STR recorded the Veteran's blood pressure at 135/90. In April 1982, a report of medical history STR showed that the Veteran indicated his heart and vascular system were normal. His blood pressure was recorded at 132/70. A March 1984 STR recorded the Veteran's blood pressure as 140/84. He denied reports of high blood pressure. A February 1985 STR recorded the Veteran's blood pressure as 118/70. He denied reports of high blood pressure. A February 1986 STR recorded the Veteran's blood pressure at 120/70. He denied reports of high blood pressure. Additionally, the Veteran underwent an exercise tolerance test after reporting chest pain. His blood pressure was noted to be 110/86 at control level, 135/80 after 3 minutes, 150/80 after 6 minutes, 155/80 after 9 minutes, 160/80 post test, 140/80 3 minutes post test, 130/80 6 minutes post test, and 120/80 9 minutes post test. In an April 1986 STR report of medical history, the Veteran did not report any issues or symptoms with his heart or vascular system. His blood pressure was recorded as 138/90 sitting, and 120/88 standing. An April 1986 STR report of medical care showed that the Veteran had been identified as having had high blood pressure. His blood pressure checks were 135/66, 127/73, 121/76, 126/77, 136/76, and 125/67. A February 1987 dental STR showed the Veteran's blood pressure to be 120/70. He denied reports of high blood pressure. In his February 1987 STR retirement physical, he did not indicate that he had symptoms or concerns regarding his vascular system or heart. He did indicate that he had high or low blood pressure. He noted that he was in good health and not on medication. His blood pressure was recorded at 136/88. In September 1987, a VA medical record recorded the Veteran's blood pressure at 138/81. An October 1987 VA medical record showed the Veteran's blood pressure to be 143/83. In a October 1987, a VA examination recorded the Veteran's blood pressure at 124/80 sitting, 122/84 recumbent, 116/82 standing, 124/82 sitting after exercise, and at 108/64 two minutes after exercise. His cardiovascular system was noted to be normal. An April 1993 VA medical record indicated the Veteran had a blood pressure reading of 138/96. In July 1993, a VA medical record recorded the Veteran's blood pressure as 130/84. In February 1998, A VA medical center (VAMC) record indicated the Veteran presented to primary care for an irregular heartbeat. His blood pressure was 165/93. He reported a history of an irregular pulse the day prior. In March 1998, the Veteran submitted a statement wherein he stated his blood pressure had been up and down. He reported that he was on a low sodium diet and that he exercised. He stated that he was "checked" the month prior for an erratic pulse and was given an EKG. In June 1998, a VA medical record showed Veteran's blood pressure 140/82. In September 1998, a VA medical record indicated the Veteran's blood pressure was 131/81. In February 1999, a VA medical record indicated the Veteran's blood pressure was 153/74. In March 1999, a VA medical record showed the Veteran's blood pressure to be 128/78. In April 2000, a VA medical record indicated the Veteran had a blood pressure of 156/89. He was diagnosed with hypertension and prescribed medication. In March 2001, a VAMC indicated the Veteran had a history positive for hypertension and a mitral valve prolapse. A May 2001 VAMC record indicated the Veteran was off his blood pressure medication for 1 or 2 months. He reported that his at home blood pressure checks were in the 120's/60-70s. His blood pressure that day was recorded at 120/64. He was noted to have hypertension controlled and advised to observe his blood pressure. An August 2001 VAMC primary care note indicated the Veteran's blood pressure was 146/88. In September 2001, a VA medical record the Veteran indicated he had hypertension which was controlled by diet and exercise. In October 2001, a VA medical record indicated the Veteran's blood pressure was 128/86. He reported being off his blood pressure medication for the prior 6-9 months with no problems. He was advised to monitor his blood pressure at home. In March 2002, a VA medical record recorded the Veteran's blood pressure at 138/89. He presented to his primary care provider for pain in his left shoulder. In March 2002, a VA primary care note recorded the Veteran's blood pressure at 138/95 and 133/91. A January 2006 letter from one of the Veteran's private physicians reported that the Veteran had indicated he had high blood pressure in his February 1987 retirement physical and noted the Veteran's blood pressure at that retirement examination to be 146/88. In November 2006, the Veteran was diagnosed with PTSD. In a November 2007 Statement in Support of Claim, the Veteran stated that he understood that PTSD could cause hypertension. In a December 2008 Appeal to Board of Veteran's Appeals Form 9, the Veteran indicated that he had listed high blood pressure on his February 1987 retirement examination and that his blood pressure at that time was 136/88. He reported that in the last few years of his service he was grounded for 5 day blood pressure checks. He also reported that he was counseled to lower his blood pressure through diet and exercise. In a May 2014 VA examination regarding the Veteran's hypertension, he reported that he believed that his high blood pressure began while in-service and that he began taking high blood pressure medication in 1982. He reported that he was on medication for the control of his high blood pressure. His current blood pressure readings were 144/99 and 137/94. A December 2013 blood pressure reading was noted at 124/79. The examiner stated that it was his opinion that the Veteran's hypertension was less likely than not related to an in-service event, injury, or illness. The examiner stated that the Veteran's file did not have documentation of elevated high blood pressure readings which indicated a diagnosis of hypertension or treatment for hypertension while in-service. The examiner noted that the January 2006 letter from the Veteran's treating physician mis-reported the Veteran's retirement physical blood pressure and that the Veteran's blood pressure at that time (136/88) did not meet the qualifications of hypertensive. The examiner also stated that it was less likely than not that the Veteran's PTSD aggravated the Veteran's hypertension. The examiner reasoned that the Veteran likely had primary hypertension, which risk factors included increasing age and a positive family history. The Veteran's PTSD was noted, though the examiner stated that given the Veteran's controlled blood pressure on medication and clinically stable PTSD, the Veteran's hypertension was less likely than not aggravated by his service-connected PTSD. In June 2015, the Veteran submitted a statement wherein he reported that the examiner who evaluated his hypertension did not discuss his PTSD or its effect on him and his anxiety and lack of sleep. He also stated that he believed that his hypertension was in some way related to his PTSD. He also stated that he had elevated heart rates in 1985 and 1986. In a December 2015 VA examination regarding the Veteran's hypertension, the Veteran reported that he was diagnosed with hypertension a few years after retirement and began taking medication in the early 1990's. He was on medication for his hypertension. His blood pressure readings at that date was 140/90. The examiner found that the Veteran's hypertension was less likely than not related to the Veteran's service. The examiner noted that the Veteran did have readings that could be used to make a diagnosis of hypertension during his service or in the year after. The examiner also found that the Veteran's hypertension was less likely than not related to the Veteran's PTSD as he noted that the Veteran most likely had essential, or primary, hypertension with no identifiable cause and tended to develop gradually over many years. The examiner opined that the Veteran's hypertension did not have evidence of aggravation from PTSD. In March 2017, a VA examination regarding the Veteran's hypertension was performed. His blood pressure was noted to be 165/109, 160/102, and 154/103. He reported having to be on constant medication. He reported that in the early 1990's he was put on a heart monitor due to tachycardia. He recalled having to do 5 day blood pressure checks. He reported starting on high blood pressure medication in 1992. The examiner opined that the Veteran's hypertension was less likely than not related to his service-connected PTSD, as she was unable to find a valid study showing a relationship between PTSD and hypertension. The examiner also opined that the Veteran's hypertension was less likely than not incurred in-service, as he had normal blood pressure readings after retirement, with isolated, elevated readings starting in 2001. She noted that she could not find the records where the Veteran indicated he was medically grounded from flight due to high blood pressure. In July 2017, the Veteran submitted a statement in which he indicated that his hypertension might be related to his exposure to herbicides. In November 2017, a VA medical records review was conducted regarding the Veteran's hypertension. The examiner opined that it was less likely than not that the Veteran's hypertension had its clinical onset in service or in the year following service. The examiner noted the Veteran had elevated blood pressure readings in-service, but the examiner noted that those readings were all below the threshold for hypertension according to the VA criteria. The examiner also stated that it was less likely than not that the Veteran's hypertension was related to the Veteran's elevated readings in-service and less likely than not a result of disease or injury during service, as many of the Veteran's blood pressure readings were taken when the Veteran was being evaluated for illness or injury and were normal. Service Connection for Hypertension Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Service connection may be presumed for certain chronic diseases, to include hypertension, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show 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. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § 3.303(b) (2017). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 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 caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Initially, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. At the outset, the Board notes that VA regulations specify that the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. In addition, VA regulations specify that hypertension must be confirmed by readings taken two or more times on at least three different days. Id., Note (1). Direct service connection necessitates that the Veteran's hypertension was related to an injury or disease incurred in service. The evidence of record, however, does not support such a finding. The Veteran's STRs do contain reports of the Veteran having elevated blood pressure readings, but also show the Veteran to have had predominantly normal blood pressure readings while in-service. Importantly, the Veteran's STRs are void of treatment for high blood pressure and also do not include a diagnosis of or treatment for hypertension. Thus, the Veteran's isolated episodes of elevated blood pressure in-service do not establish that the Veteran had hypertension while in-service. Indeed, the Veteran denied high blood pressure in STRs in 1984, 1985 and 1986. In a February 1987 dental STR, the Veteran denied high blood pressure. In his February 1987 retirement physical, hypertension was not found to have been present while the Veteran was in-service. Also, though he indicated he had high blood pressure readings in his February 1987 retirement report of medical history, the Veteran did not indicate that he had hypertension. His notations of occasional high blood pressure readings were related to prior episodes and the Board notes that the Veteran had normal blood pressure readings in the subsequent blood pressure checks. The multiple VA examinations regarding the Veteran's hypertension also did not find any diagnosis or treatment for hypertension while in-service. The Board notes that the December 2015 examiner did state that the Veteran had blood pressure readings which could have been used to make a diagnosis of hypertension while in-service. However, the Board points out that the Veteran was not, in fact, diagnosed with hypertension in service. Significantly, moreover, the December 2015 examiner also did not find that the Veteran's hypertension was related to service. The Board again notes that the Veteran was not diagnosed with hypertension while in-service and did not treat for high blood pressure or hypertension until over a decade after service. Additionally, the Veteran's May 2014, March 2017, and November 2017 VA examiners all found that it was less likely than not that the Veteran's hypertension was related to his service. Specifically, the May 2014 examiner stated that the Veteran's in-service elevated blood pressure readings did not qualify as a diagnosis of hypertension. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Similarly, there is no evidence of record which established that the Veteran was diagnosed with hypertension within one year of his active service. An October 1987 VA examination did not find that the Veteran had high blood pressure or hypertension and subsequent VA medical records did not indicate that the Veteran was treating for high blood pressure or hypertension. Furthermore, the first documented report of hypertension found in the evidence of record was in April 2000, when he was diagnosed with hypertension. That medical record did not indicate that the Veteran had related his hypertension to service or had been treating for hypertension since his separation from service and did not, itself, relate the Veteran's hypertension to his service. The first indication contained in the evidence of record that the Veteran had hypertension, then, was the April 2000 VA medical treatment note which diagnosed the Veteran with hypertension. Thus, as established by the evidence of record, the Veteran's hypertension was not diagnosed or treated until over a decade after his active service had ended. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000); Shaw v. Principe, 3 Vet. App. 365 (1992). Thus, the medical evidence of record does not indicate that the Veteran was treating for high blood pressure or hypertension either in-service or within several years of service. Furthermore, the numerous VA examiners did not find that the Veteran's hypertension was related to his service. Thus, the evidence of record which addresses the etiology of the Veteran's hypertension, did not link the Veteran's hypertension to his service. As such, direct service-connection for hypertension is not warranted. Additionally, secondary service connection is also not established in regards to the Veteran's hypertension. Secondary service connection for the Veteran's hypertension would necessitate the disability being caused or aggravated by a service-connected disability. The Veteran's contends that his hypertension is related to his service-connected PTSD. The evidence of record, however, does not support a finding of a link between the Veteran's PTSD and his hypertension. In fact, the evidence of record is in direct opposition to a relationship between the Veteran's hypertension and his PTSD. Again, numerous VA examinations have determined that the Veteran's hypertension was not caused or aggravated by his PTSD. Specifically, the May 2014 examiner found that given the Veteran's controlled hypertension and stable PTSD, the Veteran's hypertension was less likely than not aggravated by his PTSD. The December 2015 examiner also did not find evidence that the Veteran's hypertension was aggravated by his PTSD. Also, the March 2017 examiner did not find a link between the Veterans' PTSD and his hypertension, as she was unable to find a valid study which established such a link. Further, none of the Veteran's private medical records contained in his claims file related his hypertension to his PTSD. Thus, the record is void of any evidence which would support a finding that the Veteran's hypertension was caused or aggravated by PTSD. Considering that the only evidence of record to address the question of whether there was a relationship between the Veteran's service-connected PTSD and his hypertension finds there was no such relationship, the Board finds that secondary service-connection is not warranted. The Board finds May 2014, December 2015, March 2017, and November 2017 VA examiners' medical opinions highly probative to the issue of whether the Veteran's hypertension is related to service, to include his service-connected PTSD. The examiners possessed the necessary education, training, and expertise to provide the requested opinions. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The May 2014, December 2015, and March 2017 opinions were based on a review of the claims file and an interview of the Veteran. The examiners' review of the Veteran's claims file consisted of his service treatment records, post-service medical evidence, and the Veteran's contentions, upon which the examiners relied upon in giving their opinions. It is clear that the examiners took into consideration all relevant factors in giving their opinions. Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. Though the Veteran did submit a January 2006 statement from his private treating physician that indicated he had high blood pressure in his February 1987 examination, the Board notes that the physician did not relate the Veteran's hypertension to service. Additionally, the private physician's report of the Veteran's blood pressure reading at the February 1987 retirement physical was incorrect. Thus, the Board does not give the January 2006 private physician letter any probative weight. The Board finds, then, that the only probative medical opinions of evidence of record showed that the Veteran's hypertension was not related to service or his service-connected PTSD. The Board has also considered the Veteran's lay statements, including those that related his hypertension to his PTSD. Although the Board recognizes that the Veteran is competent to describe his observable symptoms of hypertension, including his high blood pressure readings, he is not competent to opine as to the etiology of his hypertension, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's lay opinions that his hypertension was related to his active service or his service-connected PTSD, do not constitute competent medical evidence and lack probative value. The Board also notes that in his July 2017 statement, the Veteran indicated his hypertension may be related to his exposure to herbicides. Initially, the Board notes that the Veteran is presumed to have been exposed to herbicides. However, hypertension is not one of the diseases listed under 38 C.F.R. § 3.309(e). Therefore, presumption of the Veteran's hypertension as due to herbicide exposure is not warranted. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2017). In sum, the claims file does not contain competent and probative evidence that the Veteran's hypertension is related to service or his service connected PTSD. Accordingly, as the preponderance of the evidence is against the claim for service connection, on both a direct and secondary basis, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension, including as due to PTSD, is denied. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. Subsequent to the last supplemental statement of the case (SSOC) in June 2017 which addressed the Veteran's claim for an increased rating of his left knee scar, the Veteran underwent an additional VA scars examination in both June 2017 and September 2017. The Board notes that the November 2017 SSOC did not address the Veteran's claim regarding his left knee scar. Without a waiver of initial RO consideration, the Board has no alternative but to remand these matters for the issuance of a SSOC that considers all of the evidence of record associated with the claims file since the June 2017 SSOC. 38 C.F.R. §§ 19.31, 19.37 (2017). Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Accordingly, the case is REMANDED for the following action: 1. Review all evidence received since the prior June 2017 SSOC was issued, to include the June 2017 and September 2017 VA examinations of the left knee scar, and then readjudicate the claim. 2. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.. §§ 5109B, 7112 (2012). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs