Citation Nr: 1805212	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  09-31 055	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for an acquired psychiatric disorder.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

J. Trickey, Associate Counsel
INTRODUCTION

The Appellant had a period of active duty from June 4, 1974 to July 26, 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

In February 2016, the Board remanded the claims for additional development.  The claims were readjudicated in an April 2017 Supplemental Statement of the Case and a September 2017 rating decision.  

In December 2017, the Appellant testified before the undersigned Veterans Law Judge at videoconference hearing.  A transcript has been associated with the claims file.

The issue of entitlement to service connection for an acquired psychiatric disorder 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 manifest in service and is unrelated to service or a service-connected disability.


CONCLUSION OF LAW

The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Law and Regulations

Generally, in order to qualify for VA benefits, a claimant must be a veteran.  See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a "veteran" is one of the five elements of a claim for service-connection benefits).  One of the benefits administered by VA that is reserved specifically for veterans is disability compensation.  Accordingly, in order to establish his entitlement to disability compensation benefits, he or she must first establish "veteran" status.  

The term "veteran" is defined in 38 U.S.C. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  The term "active military, naval, or air service" includes (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty.  38 U.S.C. § 101(24); 38 C.F.R. § 3.6 (a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by reserves for training purposes."  38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c).  

The Board notes that the Appellant served on active duty solely during initial entry training from June 4, 1974 to July 26, 1974 and was separated due to a preexisting condition that was not incurred in or aggravated by service.  See Aptitude Board Report dated July 1974.  The Appellant has not acquired veteran status.

Veterans are entitled to VA disability compensation benefits if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C. § 1110 (wartime service), 1131 (peacetime service).  To establish a right to compensation for a present disability, a veteran must show:  "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury.  See 38 C.F.R. § 3.310.  In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).  

VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Appellant.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Hypertension

The Appellant asserts he has hypertension due to left foot pain.  See Statement in Support of Claim dated September 2008.  

To the extent that there are lay opinions, including those of the Veteran, linking the Veteran's hypertension to his left foot pain, the Board notes that entitlement to service connection for a left foot disability has not been established and was denied by the Board in a February 2014 decision.  

In addition, hypertension was not noted during service.  The Board finds that the service treatment records do not show a combination of hypertension manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Additionally, the Appellant has not asserted that he had hypertension in service.  See Hearing transcript dated December 2017.

In sum, there is no reliable evidence to corroborate the Veteran's assertions that this disorder, with an onset many years after service, is in any way related to his service or a service-connected disability.  The Board finds that the Veteran's claim does not satisfy the requirement of in-service incurrence or aggravation of a disease or injury; or a causal relationship between the present disability and the disease or injury incurred or aggravated during service or a service-connected disability.  Shedden, 381 F.3d at 1167.  To the extent that the Veteran believes that his hypertension is related to service, unfortunately, the Veteran is not competent to identify the etiology of his condition as this matter requires medical expertise.  See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Accordingly, as the preponderance of the evidence is against the claim, service connection is not warranted for hypertension on any basis.  Gilbert, supra.

The Board appreciates the Appellant's honorable service.  This decision denying service connection is in no way meant to diminish that service.  Unfortunately, however, as the preponderance of the evidence is against the claim, the claim cannot be granted.

ORDER

Service connection for hypertension is denied.


REMAND

Acquired Psychiatric Disorder

The Appellant submitted an August 2008 statement asserting service connection for depression secondary to a left foot disability.  The Appellant also testified at the December 2017 hearing that he had a nervous condition in service and became aware of hallucinations in the 1980s.  The Board notes that the Appellant has not been afforded a VA examination for this claim.  

In light of the Appellant's testimony at the December 2017 hearing and the evidence of a psychiatric symptoms in service and VA treatment records, the Board finds a VA examination and opinion are warranted to ascertain the etiology of the Appellant's psychiatric disability.  See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

Accordingly, the case is REMANDED for the following action:

1. Obtain ALL outstanding records pertinent to the claims, specifically VA treatment records that have not been associated with the claims file.  

2.  Schedule a VA examination and obtain an opinion to ascertain the etiology of the Appellant's psychiatric disability.  The examiner should review the claims file, including the Veteran's statements, VA treatment records, service records and the December 2017 hearing.  

The examiner should note their review of evidence of the Aptitude Board Report findings dated July 1974.  

a.  State whether it is at least as likely as not (a 50 percent or higher degree of probability) that an acquired psychiatric disorder is due to or caused by service.

b.  State whether it is at least as likely as not (a 50 percent or higher degree of probability) that an acquired psychiatric disorder was aggravated (permanently worsened beyond the normal progression of the disease) by service.

3.  After the above development is completed, adjudicate the claim remaining on appeal.  If any benefit sought remains denied, issue a supplemental statement of the case and 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs