Citation Nr: 1813992 Decision Date: 03/08/18 Archive Date: 03/14/18 DOCKET NO. 14-05 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected Graves' disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Neal, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2016, the Veteran failed to appear, without explanation, for a Board hearing. He was notified of the hearing by phone in October 2016 and by letters in October 2016 and November 2016. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. C.F.R. §20.702(d) (2017). In March 2017, the Board remanded the matter on appeal for further development. FINDING OF FACT The preponderance of the competent and credible evidence is against a finding that the Veteran's hypertension is caused or aggravated by his active service, including service-connected Graves' disease. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to service-connected Graves' disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012) defined VA's duty to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Furthermore, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. §5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Here, the Veteran's available service treatment records (STRs) and post-service treatment records have been secured. In addition, an additional VA examination was afforded in May 2017. The Veteran has not challenged the adequacy of the examination. 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); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159 (c)(4) (2017). There has also been substantial compliance with prior remand directives. In its March 2017 remand, the Board directed the RO to afford a new VA examination and to obtain any outstanding VA and private treatment records. The additional development of the evidence substantially complies with these directives. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria & Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including hypertension, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In cases of chronic diseases, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Allen v. Brown, 8 Vet. App. 374 (1995). 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptoms). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his currently diagnosed hypertension is caused or aggravated by his service-connected Graves' disease, and related hypothyroidism. See, e.g., December 2017 appellate brief. In this regard, the Board notes that a March 1992 rating decision granted service connection for Graves' disease. The Veteran's STRs are silent as to a diagnosis of, or treatment for, hypertension. According to post-service medical records,imaging studies performed at a private facility in December 1991 revealed Graves' disease superimposed on a multinodular goiter. See P.M.C. diagnostic imaging report. Thereafter, in January 1991, the Veteran underwent an initial VA disability examination. The examiner acknowledged symptoms of his diagnosed Graves' disease, but did not note any diagnosis or complaints of hypertension. On November 13, 1991, the Veteran presented to urgent care with complaints of flu symptoms. See P.M.C. urgent care center note. The treating nurse noted a blood pressure reading (with the systolic value over the diastolic value, in millimeters of mercury) of 126/95. In addition, the nurse noted that the Veteran was on decongestion medications. Subsequently, on November 21, 1991, the Veteran returned for a follow-up. The private physician gave an assessment for tachycardia and tremors and prescribed the Veteran with propranolol. The physician also noted a blood pressure of 108/60. On January 3, 1994, the Veteran visited his VA health provider. The provider noted that the Veteran had been off propranolol for 1 year. In addition, the provider noted a blood pressure of 130/80. Subsequently, on January 31, 1994, the Veteran was diagnosed with hypothyroidism and was started on Synthroid. His blood pressure at that time was recorded as 110/80. A blood pressure test conducted in July 2002 revealed a blood pressure of 128/91. See VA preventative and health maintenance note. In May 2004, the Veteran presented to his VA primary care physician. The Veteran was diagnosed with mild hypertension likely due to decongestant usage. Then, in March 2005, the Veteran visited the VA pharmacy in relation to his hypertension. The treating pharmacist noted that the Veteran's heart rate was elevated despite the Veteran discontinuing usage of decongestants. The Veteran underwent a VA examination regarding his Graves' disease in June 2005. The examiner found that the Veteran's hypothyroidism was secondary to his treatment for Graves' disease. In addition, the examiner stated that there is no relationship between the Veteran's treated Grave's disease and his hypertension. A letter from the Veteran's private physician, Dr. M.M., was received by the RO in March 2011. Dr. M.M. indicated that the Veteran's hypothyroidism can contribute to his hypertension and can make hypertension more difficult to treat. In November 2012, the Veteran submitted to a VA examination regarding his hypertension. The examiner determined that it is less likely than not that the Veteran's hypertension was incurred in service or caused by his service-connected Graves' disease, including related hypothyroidism. The examiner reasoned that hypothyroidism is associated with low blood pressure rather than high blood pressure. The examiner also noted that the Veteran was diagnosed with hypertension in 1991 and that the diagnosis was incidental and separate from hypothyroidism. The VA examiner issued an addendum opinion in December 2013. In the addendum, the examiner clarified that the Veteran's reported 1991 diagnosis of hypertension was reported by the Veteran and that STRs did not reflect a diagnosis of or treatment for hypertension. In a December 2016 appellate brief, the Veteran, through his representative, referred to a National Institutes of Health (NIH) study that found that certain hypothyroidism may contribute to the development of arterial hypertension. Pursuant to the Board's March 2017 remand, the Veteran was afforded an additional VA examination in May 2017. The examiner determined that it is less likely than not that the Veteran's hypertension is caused or aggravated by his service-connected Graves' disease, including conditions associated with Graves' disease, such as hypothyroidism and hyperthyroidism. In this regard, the examiner noted that the Veteran reported that his blood pressure was normal when he was diagnosed with Graves' disease. The examiner also noted that the Veteran's blood pressure was normal when he was found to be tachycardic in November 21, 1991, and when he was diagnosed with hypothyroidism on January 31, 1994. In addition, the examiner acknowledged the NIH study, but reiterated that the Veteran's blood pressure was normal at the time he was diagnosed with Graves' disease and at the time he was diagnosed with hypothyroidism. Laboratory studies also reportedly showed good thyroid control at the time of the Veteran's diagnosis of hypertension. Further, the examiner stated that hypertension is common in the general population and cited to the National Health and Nutrition Examination Survey conducted from 2005 through 2008, which estimated that approximately 29 to 31 percent of adults in the United States have hypertension. STRs are silent as to a diagnosis of hypertension. Further, there is no competent and credible evidence of record of a diagnosis or complaints of hypertension within the year following the Veteran's discharge from active service. While he has reported a diagnosis of hypertension from 1991, the medical treatment records do not reflect such a diagnosis at that time. As a layperson, he is competent to testify to observable symptoms. Layno, 6 Vet. App. at 470. In contrast, a diagnosis of hypertension requires the opinion of a medical professional. Therefore, service connection for hypertension, to include as secondary to service-connected Graves' disease, cannot be presumed under 38 C.F.R. § 3.307, and the claim must meet the criteria for general service connection claims. 38 C.F.R. § 3.303. Accordingly, the Board finds that the preponderance of the competent and credible evidence is against a finding that the Veteran's hypertension is caused or aggravated by to his active service, including his service-connected Graves' disease. The Board acknowledges the Veteran's current diagnosis of hypertension as well as the findings of record that his hypothyroidism is related to his service-connected Graves' disease. However, there is insufficient evidence at this time to conclude that the Veteran's hypertension is at least as likely as not caused or aggravated by hypothyroidism or other consequence of Graves' disease. While the Board does not doubt the credibility of Dr. M.M. or of the NIH study, the mere fact that hypothyroidism can or may contribute or complicate hypertension, alone, does not establish causation or aggravation for VA purposes. 38 C.F.R. § 3.102. The May 2017 VA examination did not find that his hypertension was either caused or aggravated by his Graves' disease, including hypothyroidism. The examiner acknowledged the NIH study and specifically noted that the Veteran's blood pressure level was normal when he was diagnosed with hypothyroidism, an observation consistent with the record. There is also no evidence that the Veteran had high blood pressure when he was diagnosed with Graves' disease. Further, the examiner indicated that the Veteran exhibited good thyroid control when he was diagnosed with hypertension. Accordingly, without any other competent etiological opinion of record, the Board concludes that the criteria for service connection for hypertension, to include as secondary to service-connected Graves' disease, have not been met. See 38 C.F.R. §§ 3.303, 3.304, 3.310. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not helpful to the Veteran. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected Graves' disease, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs