Citation Nr: 1805983 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-12 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected acquired psychiatric disorder and/or as secondary to service-connected lung disorder. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1965 to June 1969 with additional service in the United States Naval Reserve. His active duty included service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. The Board has re-characterized the issue, as shown on the title page, to reflect the evidence of record and the benefits which the Veteran seeks. The case was remanded to the Agency of Original Jurisdiction (AOJ) in January 2017 for additional development. The case has returned to the Board for further appellate action. FINDING OF FACT Hypertension was not manifest during service and is not caused or aggravated by service-connected acquired psychiatric disorder or lung disorder. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, is not be presumed to have been incurred therein, and is not due to, or the result of, or aggravated by service-connected acquired psychiatric disorder or lung disorder. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310(a)-(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Re-characterization of Issue The Board has re-characterized the issue of entitlement to service connection for hypertension, to include as secondary to service-connected disabilities as entitlement to service connection for hypertension, to include as secondary to service-connected acquired psychiatric disorder and/or as secondary to service-connected lung disorder. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, even though the AOJ adjudicated the issue as entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, the Board finds that the symptoms articulated by the Veteran in the evidence of record supports re-characterization as entitlement to service connection for hypertension, to include as secondary to service-connected acquired psychiatric disorder and/or as secondary to service-connected lung disorder. The Board notes here that the Veteran's lung condition has been alternatively characterized as lung cancer; a fungal inflammation consistent with Aspergillosis; and lung disorder, otherwise specified as emphysema or chronic obstructive pulmonary disease (COPD). To add clarity, the Board frames this as a lung disorder. II. Remand Compliance As noted in the Introduction, this case was remanded to the AOJ in January 2017. The Board is satisfied that there has been substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-67 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1999) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). III. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. 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 duty to assist argument). IV. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303 (2017). 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 U.S.C. § 1154(b), the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease is reduced. See Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996). For veterans who served 90 days or more of active service during a war period or after December 31, 1946, there is a presumption of service connection for certain chronic disabilities, such as hypertension, incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113 (2014); 38 C.F.R. §§ 3.307 (a), 3.309(a) (2017). For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 (a) proximately caused by or (b) aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a)-(b) (2017). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310 (a)-(b) (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA will 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 a determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2014); 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). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight." It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Evidence The Veteran served in the United States Navy as a hospital corpsman with service in Vietnam. He was awarded the Fleet marine Force Combat Operations Ribbon. The Veteran contends that hypertension was proximately caused or aggravated by service-connected acquired psychiatric disorder. Alternatively, he contends that hypertension was proximately caused or aggravated by service-connected lung disorder. The Veteran's Service Treatment Records (STRs) provide an extensive amount of information about the Veteran's blood pressure and specific blood pressure readings throughout his active and reserve duty service. For example, the Veteran reported that he did not have high blood pressure in a March 1968 Dental Health Questionnaire and a December 1973 Report of Medical History. As to specific measurements of blood pressure: In a November 1977 Report of Medical Examination, the Veteran's blood pressure was recorded as 110/76; in a November 1978 Report of Medical Examination, the Veteran's blood pressure was recorded as 106/66; in a March 1980 Report of Medical Examination, the Veteran's blood pressure was recorded as 120/80; in a March 1983 Report of Medical Examination, the Veteran's blood pressure was recoded as 98/64; in a November 1983 Report of Medical Examination, the Veteran's blood pressure was recorded as 120/84; and in a January 1985 Report of Medical Examination, the Veteran's blood pressure was recorded as 120/72. The Veteran was afforded an electrocardiogram in November 1988, the results of which provided a blood pressure measurement of 120/72. The Veteran's March 1986 Report of Medical Examination noted a blood pressure reading of 116/88. Additional reserve STRs provide that blood was 110/70 in February 1987; 114/78 in February 1988; and 98/68 at the time of the December 1991 Retirement (Reserve) Report of Medical Examination. The Veteran did not self-report high blood pressure or hypertension in any of these Reports of Medical Examination. A November 2003 medical record from I. Hospital, a private treatment facility where the Veteran received on-going treatment for his lung disorder, provided an assessment of mild hypertension that was possibly related to pain. A December 2010 Primary Care Resident Note from the Richmond, Virginia Veterans Affairs Medical Center (VAMC) mentioned that the Veteran had an "active problem" of hypertension. In July 2011, a letter from Dr. A., a private physician, was submitted. Dr. A. wrote that he has been seeing the Veteran for moderate obstructive airway disease and post-resection of the right lobe of his lung (during which a mass was excised). Dr. A. stated that at the time of the resection the Veteran had been diagnosed with hypertension. The Veteran also may have PTSD, according to Dr. A., which-in association with the lung disorders-all contribute to his fluctuations in blood pressure. Dr. A. did not provide an impression of hypertension based upon his own diagnostic findings; did not provide any test results indicative of fluctuations in blood pressure; and did not provide a rationale for the medical conclusion concerning hypertension that he reached. A July 2013 Nursing Flowsheet from the Richmond VAMC provided two consecutive blood pressure readings of 133/73 and 158/95 respectively. A review of W. R. Center Hospital records, a naval hospital and outpatient center, reveals that the Veteran sought medical treatment, consultation, and monitoring from 2014 to 2017, on a regular basis. Psychological disorders, lung disorders, and hypertension appear throughout notes of care. In April 2017, the Social Security Administration (SSA) National Records Center submitted a letter responsive to a request for medical records. (The Board takes note of this evidence as the January 2017 directed the AOJ to obtain these medical records.) In pertinent part, this response provided that SSA had no medical records pertaining to the Veteran. In May 2017, a letter was sent to the Veteran explaining that SSA medical records could not be located, requesting the Veteran supply the purported SSA records. In a May 2017 Report of General Information (VA Form 27-0820), a VA representative noted that she contacted the Veteran and he reported that he had never received disability or medical treatment from SSA. The Veteran, according to the representative, stated that he retired as an employee of the Commonwealth of Virginia due to panic attacks and memory issues. In May 2017, the Veteran was afforded a VA examination. The examiner reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted a physical examination. The examiner provided a diagnostic impression of hypertension as of the date of the examination. He also opined that it was first noted in 2003. During the examination, the Veteran stated that his blood pressure is "still all over the place." Upon physical examination, the examiner provided the requisite three blood pressure readings determinative of a diagnosis of hypertension for VA purposes. The examiner opined that hypertension was less likely than not incurred or caused by an in-service injury event or illness. As a rationale for this finding, the examiner provided that there is no evidence in the claims file indicating that the Veteran had either symptoms or diagnostic impressions of hypertension while in service. Moreover, he opined that it cannot be speculated that hypertension was caused by a service-connected disability. In an addendum of the same month, this examiner clarified his responses. He opined that the Veteran's present hypertension was not caused by or secondary to the Veteran's military service. As to rationale, he opined that 1973, 1986 and 1991 Reports of Medical Examination show blood pressure readings within the normal range. The examiner opined that the Veteran's hypertension was not worsened by lung disorder, underscoring that the documentation of record does not support any history of hypertension getting worse because of the lung disorder. The Veteran's hypertension was also not worsened by service-connected lung disorder, otherwise specified as emphysema or COPD. As rationale for his opinion, the examiner noted that it appeared that the Veteran was first diagnosed with these lung disorders in 2003 and Reports of Medical Examination are silent as to any respiratory conditions, opining that the Veteran's emphysema was caused by cigarette smoking exclusively. Furthermore, the examiner stated that the Veteran's hypertension was not caused by, worsened by, or aggravated by PTSD/panic disorder (now characterized as acquired psychiatric disorder). The examiner's rationale here provided that record review does not show any medication changes due to a worsening of hypertension. Moreover, there is no documentation of flow of care notations or report that hypertension was worsened by psychiatric disorders. A September 2017 VA treatment record noted that the Veteran's hypertension is well controlled at 133/88 with medication. In November 2017, the Veteran was afforded a VA opinion. This examiner reviewed the entirety of the claims file and cited a train of evidence of record to support her comprehensive opinions concerning the questions posed. Furthermore, she provided extensive rationales for her opinions. This examiner fully concurred with the opinions of the May 2017 VA examiner. Elaborating upon the May 2017 opinions, this examiner wrote that in her review of current pulmonary, respiratory and internal medicine literature, there is a lack of sufficient medically-based, clinical evidence to support a nexus between hypertension and the Veteran's lung disorder. Moreover, emphysema/COPD, with or without hypertension, is medically responsive to daily treatment. Therefore, and in consideration of the Veteran's lay contentions and current peer-reviewed medical literature, it is less likely than not that the Veteran's hypertension relates to/or was aggravated by service-connected lung disorder. As a rationale, she provided that current clinical literature and medical study protocols lack sufficient respiratory and medically-based, clinical evidence to support a nexus between, cause and/or aggravation of sustained and diagnosed hypertension related to lung disorder. As to PTSD (acquired psychiatric disorder), she opined that current mental health and military medicine literature as well as VA medical studies, as a whole, lack sufficient medically-based clinical evidence to support a nexus between, cause and/or aggravation (permanently worsening) of sustained and diagnosed hypertension secondary to PTSD-with or without panic disorder. Analysis In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that entitlement to service connection for hypertension, to include as secondary to service-connected acquired psychiatric disorder and/or as secondary to service-connected lung disorder is not warranted. As noted above, a Veteran seeking disability benefits must establish not only the existence of a disability, but also a connection (nexus) between his service and the disability. See Shedden, supra. In reaching these conclusions, the Board has carefully considered the Veteran's assertions in the evidence. The Board acknowledges that, as a lay witness, the Veteran is competent to report his medical history and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-79 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). Nevertheless, determining the potential cause hypertension, to include as secondary to an acquired psychiatric disorder and/or a lung disorder-a disease involving in-depth knowledge of cardiology, pulmonology, as well as psycho-somatic research-is beyond the scope of lay observation. See id. Thus, a determination as to the etiology of the Veteran's hypertension is not susceptible of lay opinion and requires highly specialized training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno, supra. The Board notes that there are no exceptions to the Court's Jandreau doctrine. Therefore, the Veteran's lay assertions do not constitute competent evidence concerning the etiology of his hypertension. See 38 C.F.R. § 3.159(a)(1) (2017) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions."). With respect to establishing service connection on a secondary basis, the weight of evidence of record is against a finding that the Veteran's hypertension was caused, or aggravated, by his service-connected PTSD and/or service-connected lung disorder. Turning to the medical evidence of record, the Board may favor the opinion of one competent medical examiner over that of another as long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 7 Vet. App. 467 (1993). Greater weight may be placed on one practitioner's opinion over another depending on factors such as reasoning employed and whether or not and the extent to which they reviewed prior clinical records and evidence. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). Furthermore, the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App, 140 (2003) The Board places some probative weight on Dr. A.'s letter. Nevertheless, Dr. A. did not provide an impression of hypertension based on his own diagnostic findings; did not provide any test results indicative of fluctuations in blood pressure; and did not provide a rationale for the medical conclusion concerning hypertension that he reached. Dr. A.'s letter pales when compared to the May and September 2017 VA examination and opinion reports, taken as a whole. As set forth, both VA examiners reviewed the entirety of the Veteran's claims file and considered the Veteran's lay statements. Moreover, the May 2015 VA examiner conducted a physical examination. Based upon these VA examiners' findings, hypertension was not caused or permanently worsened by service-connected acquired psychiatric disorder and/or service-connected lung disorder. The May 2017 examiner opined that there is no documentation of flow of care notations or report that hypertension was worsened by psychiatric disorders. Likewise, she opined that the Veteran's hypertension was not worsened by lung disorder, underscoring that the documentation of record does not support any history of hypertension getting worse because of the lung disorder. Moreover, the September 2017 examiner provided rationales of these opinions. The examiner also explained the results of her research. As to acquired psychiatric disorder, she opined that current mental health and military medicine literature as well as VA medical studies, as a whole, lack sufficient medically-based clinical evidence to support a nexus between, cause and/or aggravation (permanent worsening) of sustained and diagnosed hypertension secondary to PTSD-with or without panic disorder. As to lung disorder, she opined that current clinical literature and medical study protocols lack sufficient respiratory and medically-based, clinical evidence to support a nexus between, cause and/or aggravation of sustained and diagnosed hypertension related to the Veteran's service-connected lung disorder. Here, the weight of evidence of record is also against finding that the Veteran's hypertension initially manifested in, or is otherwise related to, his active service. The first evidence of mild hypertension occurred in 2003, over 10 years after the Veteran's active service. The Board notes that the passage of years between discharge from active service and the medical documentation of a claimed disability may be considered as evidence against a claim of entitlement to service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed Cir 2000) (noting that the trier of fact should consider evidence of a prolonged period without medical complaint along with all the relevant facts and available evidence). In addition to the passage of time between the Veteran's active service and his private medical treatment in 2003, there is no competent evidence or opinion suggesting there exists a medical nexus between the Veteran's present hypertension and his active service. In sum, the competent opinions of record are against a finding that the Veteran's service-connected acquired psychiatric disorder and/or lung disorder caused, or aggravated, hypertension. Moreover, the evidence of record does not include post-service records within one year after service, vitiating the possibility of identifying characteristic manifestations of hypertension during service or within one year of separation. Additionally, there is no competent evidence suggesting that there exists a nexus between the Veteran's hypertension and service. Accordingly, the weight of evidence is against a finding that the Veteran's hypertension was caused by, or otherwise related to, active service, to include as secondary to service-connected acquired psychiatric disorder and as secondary to service-connected lung disorder. The preponderance of evidence is against the Veteran's claim and there is no doubt to be resolved. See 38 U.S.C. § 5.107(b) (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension, to include as secondary to service-connected acquired psychiatric disorder and/or as secondary to service-connected lung disorder, is denied ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs