Citation Nr: 1806853 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-07 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a back disability, as secondary to an assault. 3. Entitlement to service connection for a neck disability, as secondary to an assault. 4. Entitlement to service connection for hypertension, as secondary to service-connected posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for an abdominal disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to April 1978 and on active duty for training in the Army National Guard in June and August of 1987 and additional membership in the National Guard until 1995. This matter is before the Board of Veterans Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2017, the RO granted service connection for posttraumatic stress disorder (PTSD). Therefore, this issue is no longer on appeal. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in June 2017. A copy of the hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. The Veteran's current mild headaches did not manifest as a chronic disorder during or within one year of active service, are not residuals of injuries following an assault or motor vehicle accident, and are otherwise not attributable to service. 2. The Veteran's current cervical spine disease did not manifest as a chronic disorder during or within one year of active service, are not residuals of injuries following an assault or motor vehicle accident, and are otherwise not attributable to service. 3. The Veteran's current lumbar spine disease did not manifest as a chronic disorder during or within one year of active service, are not residuals of injuries following an assault or motor vehicle accident, and are otherwise not attributable to service. 4. Hypertension was not manifest in service or within one year of discharge from service; the Veteran's hypertension is unrelated (causation or aggravation) to a service connected disease or injury. 5. The Veteran does not have hepatitis, other liver disease, or abnormality of the digestive system during the period of the appeal; the Veteran's current mild upper abdominal pain is not a residual of that experienced in service and attributed to Gilbert's disease, a non-progressive congenital disorder. CONCLUSIONS OF LAW 1. Current headaches were not incurred in service or within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. A back disability including as secondary to an assault was not incurred in service or manifested within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 3. A neck disability including as secondary to an assault was not incurred in service or manifested within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 4. Hypertension was not incurred in or aggravated by service, may not be presumed to have been incurred therein and is not proximately due to or the result of, or aggravated by a service connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 5. A current abdominal disability manifesting by infrequent upper quadrant abdominal pain was not incurred in or aggravated by service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran nor his representative 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). II. Service Connection To establish service connection a Veteran must generally 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may also be established for arthritis and hypertension manifesting to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Arthritis must be confirmed by x-ray. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). III. History The Veteran served as a U.S. Army medical specialist with training at the level of a licensed practical nurse (LPN). Following medical training, he performed duties in a hospital intensive care unit. He was advanced to paygrade E-5 with good evaluations. He also served in the National Guard as a journalist and photographer. The Veteran and his representative contend that the disorders on appeal are all residuals of injuries sustained in a sexual assault while in Army medical training in El Paso, Texas. In statements to clinicians and in testimony before the Board, the Veteran reported he was walking to the mess hall when a friend started walking with him. His friend suddenly punched him in the stomach and when he doubled over he was hit in the head and kicked. He reported that he blacked out and came to at night in a canyon. He reported that he later awoke and walked back to the barracks where he remained for several days. He then was told he had yellow eyes and reported to the medical center. He did not report the assault to clinicians because the person who was there with him while receiving treatment was the person who assaulted him, and that person checked on him every day, as well as other medical staff. The Veteran indicated he was in isolation for two days because they thought he had hepatitis. He reported that he was not diagnosed with anything when he was discharged. He indicated that he was prescribed medication for pain and headaches and took them the remainder of his enlistment. The Veteran submitted selected pages from a personal journal with entries beginning in October 1976. There is no mention of the assault or injuries sustained at that time. In an entry dated in September 1977, the Veteran wrote that he went to see a physician about unspecified pain and that the physician told him not to worry. In an April 1978 entry, the Veteran wrote that he had unspecified chronic conditions but was told by a corpsman not to report them because he would be held on active duty. In an entry dated in September 1978, the Veteran wrote that his back and neck and abdomen were constantly painful because of the attack. At his June 2017 hearing, the Veteran testified that he did not report the assault for fear of retaliation by the perpetrators. He also testified that as a result of the trauma, his internal organs were damaged and his eyes turned yellow as a result of excess bilirubin secreted by his gall bladder, which is in the same area where he was struck. He stated that the treating physicians just made the assumption that he had hepatitis. He also testified that he was involved in a motor vehicle accident in 1977, where he received sutures on his head. He had some head trauma and some whiplash as a result of that motor vehicle accident. Regarding hypertension, he also testified that it was now so severe that he experienced palpitation and his heart racing at 160 beats a minute. He stated that he has been getting therapy for this for the past seven years but it did not really take away his anxiety. In March 2017, the RO granted service connection for posttraumatic stress disorder (PTSD) arising in part from the reported assault. Therefore, the Veteran's report of the occurrence of the assault as psychological trauma has been accepted as credible. Personnel records show that the Veteran received training and performed duties as a clinical specialist, which the Veteran testified at his hearing to be at the level of a LPN. In October 1975, the Veteran sought treatment for mild abdominal pain, nausea, vomiting, dark urine, and yellow eyes that he experienced two to three days earlier. The Veteran denied any arthralgia, myalgia, or low back pain. A neurological examination was normal. A battery of medical tests was within normal limits, including liver functions except for bilirubin. These tests were repeated two days later and were clinically normal. A cholecystogram was normal. The Veteran underwent inpatient treatment for what was initially suspected to be hepatitis but later determined to be hyperbilirubinemia, indirect type, presumed to be Gilbert's disease. Clinicians also diagnosed viral gastroenteritis that had resolved. There was no mention of headaches or reports by the Veteran or clinical observations of trauma to the head, abdomen, back or joints. The Veteran was discharged after 9 days for continued outpatient workup for Gilbert's disease with no prescribed medications. An STR from January 1978 shows neck pain but no injury. An STR from February 1978 indicates the Veteran had headaches and problems with vision and was prescribed corrective lenses. On several other occasions, the Veteran reported headaches which clinicians associated with a viral infection. There was no follow up treatment or long term prescription medication. In an April 1978 medical history questionnaire, the Veteran denied a history of headaches, arthritis, stomach liver or intestinal trouble, and high blood pressure. An April 1978 Report of Medical Examination at the time of his discharge shows his neck, spine, abdomen, and vascular system were all clinically normal. Blood pressure was measured as 120/86 mmHg. The Veteran acknowledged his workup for Gilbert's disease but denied any injury or other illness. There is no record of treatment following a reported motor vehicle accident. In a letter dated in November 1986 associated with the Veteran's application for an officer commission in the Utah National Guard, he noted that he had served as an LPN. He reported that he had been diagnosed with Gilbert's syndrome and not hepatitis or any other bodily dysfunction and that it was a benign phenomenon and of no concern. He reported that he was discharged from the regular Army in 1978 in normal health and was now in excellent health with no problems to interfere with National Guard service. A concurrent letter from his family physician confirmed that the slight jaundice and abnormal bilirubin was a non-progressive congenital liver function limitation. The RO received the Veteran's claims for service connection in December 2009 and March 2010. The Veteran was afforded a VA examination in March 2010 concerning his abdominal disability and headaches. The Veteran reported that he experienced recurrent and intermittent right upper quadrant area abdominal tenderness that occurred on average one time per year since his 1975 assault. When it did occur, it lasted less than two weeks. He described it as a constant significant pain in his right upper quadrant area. He stated it was so severe that he presented to the St. Vincent's emergency room in 1987 but only recalled receiving Percodan and did not remember any other details. The Veteran reported no triggers to his abdominal pain. He stated that perhaps the ibuprofen which he had taken on a daily basis for chronic neck and back pains also helped with his abdominal pain. Also at the March 2010 VA examination, the Veteran stated that he believed his headaches and also his neck and upper back pain limited him moderately from sports and leisure activities. He reported that he could only walk for exercise but that he was not limited from basic activities. Regarding his headaches, the Veteran also stated that his headaches began in the service and were also related to the assault he had in service. He stated that he could have been hit and kicked in the head but could not remember the details. He believed that this caused chronic neck and mid back, thoracic area pain and neck pain, which also lead to his headaches. He stated that his headaches began in 1975. He states that this has progressed, in that it is not as acute, but he has chronic daily headaches now. His headaches are always present with him and usually on a level of 3 out of 10 in terms of pain. He describes his headaches as occurring bi-temporally, also behind his eyes, and also his posterior neck area, shoulders, and back also feels tight and achy. He had no associated nausea, vomiting, photophobia, or phonophobia with his headaches. He had no focal neurological deficits with his headaches. The Veteran stated that he had triggers of lifting anything with his arms repeatedly which causes more neck pain and headaches. The Veteran stated it was better taking light naps or also his ibuprofen for the last ten years which helped his headaches, neck, and back pain. He reported no side effects from these medications. The Veteran stated in the last twelve months he estimated missing eight days of work due to headaches. The March 2010 VA examiner noted a review of the service treatment records and that in 1975 the Veteran presented with right upper quadrant pain and was diagnosed with viral gastroenteritis. There was no mention of the assault or indications of trauma. The Veteran stated that he may not have mentioned it because he was reluctant to report it. The examiner noted that the records showed that all of his evaluation and laboratory were unremarkable with the exception of slightly elevated bilirubin and direct fraction (sic), and leading to the diagnosis of presumed Gilbert's disease. Also the Veteran had no abnormalities noted on his exit report of medical history in 1978. The VA examiner opined that based upon on the Veteran's objective service medical records, there was no direct way to tie in his current recurrent symptoms directly to his diagnosis of abdominal pain or Gilbert's syndrome in the service. The VA examiner opined that the exact cause of his recurrent right upper quadrant abdominal pain was not known. However this could not be directly tied into his service based on his objective service medical records. The VA examiner found that the Veteran now has normal bilirubin, and thus, whether or not the Veteran has Gilbert's syndrome now cannot be determined. The VA examiner noted that Gilbert's syndrome is generally an asymptomatic, inherited disorder that does not cause clinically significant liver disease. All of the Veteran's liver function related tests were clinically normal. The VA examiner concluded that the Veteran does not have a definitive liver disease that can be identified given current information and normal liver tests at the time of this examination. The VA examiner also opined that the Veteran's abdominal condition, which is currently identified as recurrent right upper quadrant abdominal pain of uncertain etiology occurring once a year, and his chronic daily headaches, do not limit the Veteran from his current employment as a nurse for VA. The VA examiner noted that in terms of his service medical records, headaches are documented in the service; however whether the headaches in the service are related to the headaches that the Veteran presents today could not be determined. This is because his headaches in the service were mostly related to upper respiratory tract infections. The Veteran did have one headache clinic note from an eye clinic related to possible vision issues. The Veteran also mentioned that he has possible slight vision changes or spots in his eyes occasionally related to his headaches; however he has not seen an eye physician for years. This occurred about one time a month; however his headaches are daily. Therefore the examiner could not find definitive medical rationale to tie these all together. The VA examiner concluded that the cause of the Veteran's chronic daily headaches is not as likely as not due to his military service or service records of headaches; there are no objective service records to support such a relationship. Additionally he had a normal exit physical exam and report of medical history on April 1978. VA treatment records show a magnetic resonance imaging study of September 2010 was noted to reflect extensive cervical degenerative changes with multilevel neuroforaminal narrowing and cervical spine canal stenosis. The records also note mild thoracic degenerative changes. The Veteran reported that his neck pain is aggravated by lifting, stooping and laterally flexing the neck. Multilevel chronic hypertrophic degenerative disc changes with cervical spondylosis are noted but the records provide no medical indication that the Veteran's current cervical spine disability is due to any injury or disease or event of trauma during military service. The VA treatment records contain the Veteran's reports that the in-service event of being kicked in the head, which the Veteran contended caused his neck condition in service, is not supported by his service treatment records. However, there were no residuals of neck trauma or spine disorder reported or medically indicated at time of separation. In June 2011 and August 2011, the Veteran contended that his headaches were secondary to neck and back pain. The Veteran was also afforded a March 2012 VA psychiatric examination. The examiner concluded that the Veteran's clinical presentation in 1975 of mild scleral icterus, abdominal pain, and lab findings are most consistent with Gilbert's which is a hereditary condition of bilirubin metabolism. The VA examiner stated that this condition is most common in young adult males. There was no objective evidence of physical trauma recorded to support his report of the assault. June 2013 VA treatment records showed plain X-rays and MRI exams revealed arthritic changes and disc degeneration throughout the Veteran's spine, primarily in his neck and low back. Subsequent March 2014 VA treatment records show significant mid to lower cervical spondylosis similar to the comparison examination from 2010. There were scattered levels of thoracic spondylosis also similar to the comparison study with no significant canal stenosis overall. There were impressions of multilevel lumbar spondylosis predominately with foraminal narrowing in the lower levels, with no critical canal stenosis in that region. In March 2014, there were also impressions of mild-moderate multilevel chronic degenerative disc changes throughout the lumbar spine. Facet arthropathy was present in the lower lumbar spine. There are 5 lumbar type vertebrae with normal alignment. Vertebral body height was maintained throughout. There was mild disc space narrowing, central disc calcification and minimal marginal spurring at L1-L2. Mild disc space narrowing spurring at L2-L3. Minimal marginal spurring at L3-L4 with preservation of the disc space. There was moderate disc space narrowing and spurring at L4-L5. At L5-S1 there is minimal degeneration. The facets were sclerotic at L4-L5 and L5-S1. A VA treatment record from May 2015 indicates the Veteran had hypertension. However, the Veteran stated that that it is controlled. He was not interested in taking medication for it. He was advised to lose weight, and have a diet with no salt added. He was also advised to exercise. In August 2016, a VA PTSD examination as well as private mental health clinicians concluded that it is at least likely as not that the Veteran had PTSD as a result of an assault in service. IV. Analysis The Veteran contends that the disabilities on appeal are residuals of injuries sustained in, in particular an assault and car accident in 1975 and 1977. For the issues presently before the Board, the Veteran is competent to report the events in service, the symptoms he experienced and what he has been told by a professional. He is also competent to report that he was diagnosed with various disabilities. Regarding the occurrence and circumstances of the assault in 1975, many clinicians have accepted his reports without challenge and the Veteran has been granted service connection for PTSD in part arising from this event. The Board will not disturb the finding that the assault occurred. Although the Veteran on occasion reported to clinicians that he could not remember the details of the attack, the Board finds that the weight of evidence is that any trauma to the abdomen, head, neck and spine that may have occurred did not manifest with any acute symptoms when he was hospitalized for 9 days approximately two to three days after the event. The Veteran is credible in his reasons for not reporting the assault. However clinicians evaluated the Veteran for more than a week. No evidence of trauma to the abdomen, head, neck or spine such as lacerations or bruising or even reports of muscle or joint pain were observed by clinicians during this lengthy workup. Neurological and orthopedic examinations were normal. Even later in his service when removed from the situation where he felt he could not report the attack, he did not report any residual manifestations of injuries during the separation physical examination and denied any residuals of injuries in his letters of petition for a commission in the National Guard many years later. Even if he chose to deny any history of injury during the April 1978 discharge examination to avoid being held on active duty for medical investigation (which would have been to his benefit), the examiner noted no abnormalities indicating residual chronic disorders at the time of discharge. Therefore, the Board finds that the Veteran did not sustain trauma to the head, neck, back, or abdomen in the assault or the motor vehicle accident sufficient to cause residual physical manifestations during or within one year of active service and that his reports of a continuity of symptoms for many years after service arising from an assault or a reported motor vehicle accident warrant very low probative weight because they are inconsistent the all the medical records and circumstances where reporting these events would have been reasonably expected. His reports are also entirely inconsistent with those offered when applying for commissioned service in the National Guard. The March 2010 examiner acknowledged the Veteran's current neck and back pain and the imaging studies confirming current diagnoses of spinal disease. However, the examiner noted no indications in the service record that any trauma to the spine occurred during either the assault or reported motor vehicle accident for which there was no record of treatment. A. Headaches The Board finds that service connection for chronic headaches is not warranted. A July 1976 STR shows complaints of fever and a headache. An STR from February 1978 indicates the Veteran had headaches and problems with vision and other episodes of headache associated with viral infections. Since 2010, the Veteran reported to clinicians and submitted lay statements supporting his current headache episodes. However the Board places greater probative weight on the evidence in the service records that indicate that the headaches were associated with vison correction and viral infections. The Board places greater probative weight on the opinion of the VA examiner in 2010 who reviewed the history and found that the Veteran's chronic daily headaches were not as likely as not due to his military service not only because there were no objective service records to support such a relationship but also because the Veteran had a normal exit physical exam and report of medical history on April 1978. Moreover, the Veteran reported no physical issues when applying for a commission in the National Guard in 1986. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Back and Neck Disabilities The Veteran reported back and neck pain in his journal written near the end and shortly after service. Arthritis was later confirmed by x-ray. The Veteran testified that he had painful muscle spasms that went down his back during service and after service for which he took pain medication, although there were no outpatient records to show examination, treatment or prescriptions for the medication. The Veteran is competent to report the history of neck and back pain, but the Board places low probative weight on the report of the onset because they are inconsistent with the April 1978 discharge physical examination, associated medical history, and 1986 National Guard application when he denied any neck or spinal symptoms and reported excellent health. Notwithstanding the Veteran's description of the assault and motor vehicle accident, service records do not show visible evidence of trauma that would have been observed by examining clinicians such as bruising or lacerations consistent with the Veteran's description of the assault. There is no record of treatment following a vehicle accident. The Veteran reported that he could not remember the details of the assault and thought he might have been kicked, although he did report unconsciousness. Although it is credible that the Veteran did not report all the events at the time because of the presence of the attacker, he had opportunities to seek care for any continuing symptoms when he transferred to a different medical facility and during his discharge physical examinations. The first medical evidence of spinal disorders was a September 2010 imaging study many years after active service. The June 2013 VA treatment records indicate that plain X-rays and MRI exams revealed arthritic changes and disc degeneration throughout the Veterans spine, primarily in his neck and low back. March 2014 VA treatment records note impressions mild-moderate multilevel chronic degenerative disc changes throughout the lumbar spine. Facet arthropathy was present in the lower lumbar spine. Therefore, there is evidence of current cervical and lower spine disorders. However, the Board acknowledges the Veteran's report of physical trauma and later the onset of back and neck pain but places greater probative weight on the entire file of service records that do not show indication of head, neck or spinal injuries and on the Veteran's denial of any history of injury in 1978 or in 1986. The Board finds that a request for further medical evaluation and opinion is not warranted because the existence of an injury or onset of manifestations of a spinal disorder are not substantiated by the record and that the Veteran's report that he did sustain traumatic injuries is not credible because it is inconsistent with the records of clinical observation at the time and with denials of history of injury in 1978 and 1986. Therefore, service connection for residuals of neck and back injuries is not warranted. In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Hypertension The Veteran argues he has hypertension secondary to his service-connected PTSD, which stems from a 1975 assault. Here, the most probative evidence is consistent with the service records, where the Veteran's entrance and exit exams are clinically normal for hypertension. The Veteran's lay evidence has been considered, but warrants much less probative weight when compared to the objective medical evidence of record. The most probative evidence is the STRs indicating the Veteran was clinically normal for hypertension. In addition, VA treatment records do not indicate any evidence of hypertension for several years after discharge. Here, the Veteran's service treatment records (STRs) show no complaints or treatment for hypertension during his military service, and there is no other objective medical evidence of a current diagnosis of hypertension related to his military service. His STRs document normal blood pressure readings at service entry and discharge. There is also no evidence of hypertension within one year from separation. Current VA treatment records show assessment of elevated blood pressure, but the Veteran refused care or medication for this. There is no objective evidence that his current elevated blood pressures are related to his service. In addition, there is also no probative evidence of record indicating the Veteran's hypertension is proximately due to or the result of, or aggravated by his service connected PTSD. 38 C.F.R. § 3.310. VA treatment records indicate this is controlled and the Veteran is not interested in taking any medical for it. May 2015 VA treatment record associates his hypertension to diet and weight issues, and there is no evidence of causation or aggravation by his PTSD. The Veteran also testified that he has been able to overcome his fear of visiting the doctor in recent years since meeting a new woman. He also testified that therapy has helped him a lot. There is no probative evidence to the contrary. Consequently, service connection for hypertension is not warranted. In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Abdominal Disability The Veteran testified in June 2017 that he continued to experience recurrent and intermittent right upper quadrant area abdominal tenderness that occurred on average one time per year since his 1975 assault. The Veteran testified that he takes medication partially for this pain. He also testified that since he did not report the assault, his pain was mistakenly attributed to other diseases including hepatitis and Gilbert's disease rather than stemming from the assault he endured. The Board acknowledges the Veteran's training and a LPN but assigns less probative weight to his conclusion of mis-diagnosis as contrary findings were made by physicians at the time of his hospitalization based on laboratory findings as well as no visible signs of trauma. At the March 2010 VA examination, the Veteran described a constant significant pain in his right upper quadrant area. The VA examiner opined that based upon on the Veteran's objective service medical records, he was unable to tie in his current recurrent symptoms directly to his diagnosis of abdominal pain or Gilbert's syndrome in the service. The VA examiner opined that the exact cause of his recurrent right upper quadrant abdominal pain was not known. However this could not be directly tied into his service based on his objective service medical records. The VA examiner found that the Veteran now has normal bilirubin. The VA examiner noted that Gilbert's syndrome is generally an asymptomatic, inherited disorder that does not cause clinically significant liver disease. All of the Veteran's liver function related tests were clinically normal. The VA examiner concluded that the Veteran did not have a definitive liver disease that can be identified given current information and normal liver tests at the time of this examination. Here, the most probative evidence is the STRs that showed that the abdominal pain was attributed to Gilbert's disease and to a viral episode of gastroenteritis. The Veteran denied any chronic symptoms in 1978 and again in 1986. The Board places greatest probative weight on the analysis and opinion of the VA physician in March 2010 who reviewed and discussed the entire history, found no cause for the present recurrent pain, but also found that the current pain was not that which occurred in service, attributed to the non-progressive congenital disorder, and not manifested during service including during the 1975 hospitalization. The Board finds that the weight of competent and probative evidence is that service connection for an abdominal disability is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for headaches is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for hypertension, including as secondary to service-connected PTSD, is denied. Entitlement to service connection for an abdominal disability is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs HIS RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in his case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of his appeal, you do not need to do anything. His local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: * Appeal to the United States Court of Appeals for Veterans Claims (Court) * File with the Board a motion for reconsideration of this decision * File with the Board a motion to vacate this decision * File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: * Reopen his claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay his appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider his motion without the Court's permission or until his appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file his motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is his responsibility to make sure that his appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If his active military service materially affects his ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send his Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of his right of appeal to the Court, you must file his Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to his appeal. It is important that his letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send his letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file his motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during his appeal. See 38 C.F.R. 20.904. For example, you were denied his right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file his motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask his local VA office to reopen his claim by simply sending them a statement indicating that you want to reopen his claim. However, to be successful in reopening his claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to his case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of his attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of his claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by his agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED