Citation Nr: 1805932	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  10-47 859	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


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

E. D. Anderson, Counsel


INTRODUCTION

The Veteran had active service in the United States Navy from July 1992 to February 1996.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied service connection for the claimed condition.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in Washington, D.C., in February 2016.  A copy of the hearing transcript is of record.  The matter was then remanded by the Board in March 2016 for additional development.  In May 2017, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain a new VA medical opinion.  The action specified in the May 2017 Remand completed, the matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998). 


FINDING OF FACT

The Veteran's hypertension did not have onset in service or within one year of service and was not caused by or related to the Veteran's active military service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for hypertension have not been met.  38 U.S.C. §§ 101, 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). 

Service connection may 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) (2017). 

The Veteran is claiming entitlement to service connection for hypertension.  The Veteran has attributed his weight gain in service as the originating point for this hypertension.

The Veteran underwent an enlistment examination in June 1992, which recorded blood pressure of 130/80.  However, during his January 1996 separation examination, blood pressure was recorded as 142/92.  A separate notation indicated that his three-day blood pressure average was 145/81.

For VA rating purposes, hypertension means that diastolic blood pressure is predominantly 90mm or greater, and must be confirmed by readings taken two or more times on at least three different days.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).  Therefore, these findings in service do not conform to a diagnosis of hypertension, but do indicate elevated blood pressure consistent with the Veteran's report.  

The Veteran was diagnosed with hypertension in 2001.

In December 2010, S.B., a nurse practitioner treating the Veteran, opined that it is more likely than not that the Veteran's hypertension had onset in service.  However, it appears that this opinion is based solely on the Veteran's self-report that he had elevated blood pressure in service and a review of the Veteran's DD-214.  There is no evidence that any medical evidence was reviewed.  

In June 2017, the Veteran was afforded a VA examination to address the etiology of his current hypertension.  The examiner opined that it is less likely than not that the Veteran's hypertension was incurred in service or caused by any event or injury during his active service.  The examiner acknowledged that the Veteran had some periodic fluctuations in his blood pressure in service, but characterized these as a normal physiological response to daily activities, rather than evidence of hypertension in service and noted that there were no chronic sustained blood pressure readings of 140/90 in service to support a diagnosis of hypertension.  The examiner attributed the Veteran's current hypertension to a post-service weight gain of eighty-five pounds, which led him to become severely obese.  

In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions.  In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Appeals for Veterans Claims (Court) stated:

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . .

So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

Here, the Board gives greater weight to the opinion of the June 2017 VA medical examiner.  The examiner reviewed the Veteran's available service treatment records, and post-service VA outpatient medical records, as well as medical literature about hypertension.  There is no evidence that S.B. conducted a similar review.  Moreover, the VA examiner's opinion that the blood pressure readings fluctuated in service is based on an accurate review of the service records.  

While the Board acknowledges the Veteran's argument that he gained weight in service, and the record reflects that he was discharged for failing to meet physical standards, he has failed to prove, and the evidence does not otherwise show, that this weight gain actually caused his current hypertension.  The Board notes that despite the Veteran's in-service weight problems, the Veteran did not meet the criteria for a diagnosis of hypertension in service or within one year after separation from service.  The Veteran was not diagnosed with hypertension until approximately five years after service and only after considerable additional post-service weight gain.  Thus, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's hypertension had onset in service or was caused by an event or injury in service.

For the above reasons, entitlement to service connection for hypertension is denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).


The Duty to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2017).  Here, the Veteran was provided with the relevant notice and information, and he has not alleged any notice deficiency during the adjudication of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's VA records, and identified private treatment records have been obtained and associated with the claims file.  The Board notes that the Veteran's service treatment records, other than his enlistment and separation physicals, are missing and multiple attempts to locate them have been unsuccessful.  The Board finds that additional efforts to obtain these records would be futile.  See 38 U.S.C.A. § 5103A(b)(3).  The Board has considered the U.S. Court of Appeals for Veterans Claims (Court) statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: 

[I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well-reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. 

The Board has undertaken its analysis with this heightened duty in mind.

The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition.  VA's duty to assist with respect to obtaining relevant records and an examination has been met.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Finally, the Veteran testified at a personal hearing before a member of the Board.  The hearing was adequate as the Veterans' Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked.  38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).


ORDER

Entitlement to service connection for hypertension is denied.



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs