Citation Nr: 1807762 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-01 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Appellant and his spouse ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Appellant served in the Oregon National Guard from June 1970 to October 1974, with a period of active duty for training (ACDUTRA) from October 1970 to March 1971 and shorter periods of ACDUTRA following. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland Oregon. A Board hearing was held in April 2014. Thereafter, the case was remanded in July 2015 and May 2017 for additional development. The matter has since returned to the Board. FINDING OF FACT A preponderance of the evidence is against finding that the Appellant's hypertension was incurred during a period of ACDUTRA. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Duty to Notify VA's duty to notify was satisfied by letter in April 2010. Neither the Appellant, nor his representative, has alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service private treatment records, and lay statements have been associated with the record, to the extent they are available. The Appellant was afforded a VA examination in September 2010 and provided a VA medical opinion in July 2013. For reasons discussed below, the Board finds that the September 2010 opinion is inadequate; however, the July 2013 VA medical opinion, along with the other evidence of record, is adequate for purposes of rendering a decision in the instant appeal. Pursuant to the May 2017 Board remand, that same month, the AOJ requested service treatment records from 1970 to 1974 from the National Personnel Records Center (NPRC). Service treatment records from 1970 to 1974 were also requested from the Madigan Army Medical Center in June 2017. Negative responses were received from both NPRS and the Madigan Army Medical Center and the Appellant and his representative were notified by letter in August 2017. In September 2017, the AOJ issued a memorandum on the unavailability of service treatment records and then readjudicated the Appellant's claim in an October 2017 supplemental statement of the case (SSOC). As such, the Board finds that the AOJ substantially complied with the 2017 remand directives, to the extent possible, and no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Appellant has not identified any outstanding evidence that could be obtained to substantiate his claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Appellant's claim. II. Service Connection The Appellant is seeking service connection for hypertension. Specifically, he contends that his hypertension began during a period of ACDUTRA and became so severe, he was ultimately medically discharged. See September 2011Notice of Disagreement. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(2), (24); 38 C.F.R. § 3.6(a). In other words, service connection is available for diseases or injuries incurred in ACDUTRA and injuries incurred in INACDUTRA (including an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident). Generally, to establish a right to compensation for a present disability, an appellant must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the first element of service connection, the existence of a present disability, the Board finds that the evidence of record confirms that the Appellant has hypertension. Specifically, an October 1974 Record of Separation noted that the Appellant was disqualified for retention in the Oregon Army National Guard due to high blood pressure. Further, an October 2016 statement from the Appellant's private physician, Dr. A. G., stated that the Appellant had been diagnosed with hypertension in 1974 and continued to be managed by hypertensives to date. Therefore, the first element of Shedden is met and the issue before the Board becomes whether such disability is as a result of a period of ACDUTRA. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. Service treatment records from the Appellant's October 1970 to March 1971 period of ACDUTRA do not show complaints of, treatment for, or a diagnosis of hypertension. The Appellant's May 1970 Report of Medical Examination upon enlistment noted a blood pressure reading of 132/80 and his heart and vascular system were evaluated as clinically normal. Similarly, his March 1971 Report of Medical Examination noted a blood pressure reading of 144/86 and a repeated reading of 136-138/86. The Appellant's heart and vascular system were evaluated as clinically normal and a summary of defects and diseases noted only a bilateral refractive error. In the corresponding Report of Medical History, the Appellant stated that he thought he was in "good health" and denied having high or low blood pressure presently or historically. On a June 2, 1974 Report of Medical Examination for periodic purposes, the Appellant's blood pressure was recorded as 140/120 and it was noted that he needed medical attention regarding his high blood pressure. The Appellant was directed to be treated and rechecked before further military service. A June 1974 treatment record noted multiple blood pressure readings in June 1974 and indicated that the Appellant began treatment with a prescription of Ser-Ap-Es on June 28, 1974. A July 1974 follow-up treatment record noted the June 1974 blood pressure readings and that treatment had begun on June 28, 1974. The physician directed that the Appellant abstain from military activities for three months, after which time he was to be reevaluated for retention by a military surgeon. On an October 1974 Record of Separation from the Army National Guard of Oregon, the Appellant was found to be physically disqualified due to hypertension, which was noted not to be a result of state service. The Appellant was provided with a VA medical opinion in July 2013. The VA examiner reviewed the Appellant's claims file and recited available medical history. The examiner explained that there was no evidence that the Appellant had symptoms or a diagnosis of hypertension during his initial period of ACDUTRA in 1970 to 1971 or during the following year. She noted that the initial diagnosis of hypertension was made in June 1974 and was considered a disqualifying diagnosis for military service. The examiner further noted that the Appellant's hypertension was not granted in the line of duty by the National Guard when it was first noted in 1974. Therefore, the examiner opined that the Appellant's hypertension was not at least as likely as not related to active service. In December 2017, the Appellant's private physician, Dr. A. G., submitted a statement noting that the Appellant had documented hypertension dating back to 1974 when he was in the military and continued to be managed by hypertensives at this time. In this regard, the evidence does not indicate a diagnosis of hypertension until June 1974. Specifically, there is no indication that the Appellant suffered from hypertension during his October 1970 to March 1971 period of ACDUTRA, as his Report of Medical Examination upon separation revealed a clinically normal heart and vascular system. The July 2013 VA examiner's review of the claims file and following opinion supports the absence of evidence indicating that hypertension existed during this time. The Appellant himself denied ever having high or low blood pressure and believed himself to be in good health in March 1971. Additionally, the October 1974 Record of Separation noted that the Appellant's hypertension was not the result of state service. Finally, Dr. A. G.'s December 2017 statement noted that the Appellant's hypertension onset in 1974, not 1971 as the Appellant has asserted. The Board acknowledges that the Appellant contends he was diagnosed with hypertension during his period of ACDUTRA in 1971 and that the proof is documented in the medical records that VA has been unable to obtain. At the April 2014 Board hearing, the Appellant testified that he had developed high blood pressure during a period of ACDUTRA, from October 1970 to March 1971. The Appellant stated that an examination at the end of training revealed high blood pressure. He recalled that he was held over for about 10 days to two weeks and his blood pressure was monitored daily. The Appellant testified that he was given the choice to continue his medical evaluation or return home, and, choosing the latter, the Appellant returned home and entered a Guard unit. Problems with his blood pressure did not arise again until a 1974 periodic examination. In a March 2010 statement, the Appellant reported that he was prescribed medication for his hypertension when he was first diagnosed in 1971. His first prescribed medication for his hypertension was Ser-Ap-Es. See September 2010 VA Examination. The Appellant asserted that the March 1971 Report of Medical Examination upon his separation from active duty service failed to indicate high blood pressure because he had been on medication to control his blood pressure at the time. See September 2011 Notice of Disagreement. Concerning the onset of the Appellant's hypertension, the Board finds that the medical evidence of record is more probative than the Appellant's statements and contradicts the notion that hypertension had been diagnosed prior to June 1974. To the extent the Appellant asserts he was diagnosed with hypertension in 1971, the Appellant's contemporaneous statement on his Report of Medical History indicated that he did not have high or low blood pressure in March 1971. This is supported by the March 1971 Report of Medical Examination, which found a clinically normal heart and vascular system. The only documented defect and disease noted was bilateral refractive error. Further, a June 1974 treatment record noted the Appellant was started on Ser-Ap-Es on June 28, 1974, which contradicts the Appellant's statement that he had been prescribed Ser-Ap-Es in 1971 and had been continually on medication since. Accordingly, the Board finds that service treatment records are the most persuasive evidence as to the onset of the Appellant's hypertension. Next, the Board acknowledges that the medical evidence shows that the Appellant was diagnosed with hypertension while enlisted in the Oregon National Guard. However, as noted above, a National Guardsman seeking service connection for a Guard-related injury or disease must establish that they either became disabled from a disease or injury incurred during a period of ACDUTRA, or became disabled from an injury incurred during a period of INACDUTRA. 38 C.F.R. § 3.6. As hypertension is a disease and not an injury, it must be shown that hypertension either began during or was otherwise caused by a period of ACDUTRA. See 38 U.S.C. § 101(24). The record does not reflect that the Appellant was on active duty during the relevant time period, thus the claim must be based on a period of ACDUTRA. A Retirement Credits Record indicates that the Appellant served on active duty training from October 1, 1970 to March 5, 1971; August 6 - 21, 1971; August 11-26, 1972; and August 3-18, 1973. The record specifically indicates that the Appellant had no active duty training from June 26, 1974 to July 22, 1974. As such, the record does not show that the Appellant was serving on a period of ACDUTRA at the time his hypertension was first noted on June 2, 1974. Additionally, consistent with such, the October 1974 Record of Separation from the Army National Guard of Oregon indicated that the Appellant was physically disqualified from service due to hypertension, which was not a result of state service. As the Appellant was diagnosed with hypertension in June 1974 and it is not a result of a period of ACDUTRA, the second element of Shedden has not been met. Finally, the Board notes that there are two positive opinions of record which endorse that the Appellant's hypertension is related to service. The Appellant was afforded a VA examination in September 2010. The examiner opined that it was at least as likely as not that the Appellant's hypertension began while he was on active duty. The Board notes, as did the AOJ, that available service treatment records contradict this finding (which would have required additional rationale on the examiner's part) and it seems the examiner did not clearly understand when the Appellant's periods of ACDUTRA occurred. This is evidenced by the Appellant's dates of entrance and exit from duty left "unspecified" on the examination report. As the examiner relied on the Appellant's self-reported history and period of duty, the Board finds that the September 2010 VA medical opinion is inadequate for determining whether the Appellant's hypertension had its onset during a period of ACDUTRA. In October 2016, Dr. A. G. submitted a statement opining that the Appellant's hypertension was "maybe more likely than not related to his military service." The Board finds that Dr. A. G.'s opinion is inadequate in that it is a speculative opinion hedged by "maybe," and is not supported by any rationale. In sum, as the most probative evidence of record fails to sufficiently support a theory of service connection, the Board finds that the preponderance of the evidence is against the Appellant's claim of service connection for hypertension. Accordingly, there is no reasonable doubt to be resolved, and service connection for hypertension is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs