Citation Nr: 1814899 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 10-15 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension, to include as as due to potassium bromide (KBr) exposure; and as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1984 to December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2011 and June 2015, the Veteran testified before two different Veterans Law Judges (VLJ). A transcript of each hearing is of record. In September 2013, pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013), the Board sent the Veteran a letter notifying him of an opportunity to receive a new decision from the Board and/or hearing before a VLJ that would correct any potential due process error relating to the duties of the VLJ that conducted the July 2011 hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the requirements of 38 C.F.R. 3.103(c)(2) applies to a hearing before the Board and that a VLJ has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked). In a September 2013 document included in a filing to the United States Court of Appeals for Veterans' Claims, the Veteran responded that he wished to have the prior decision vacated and a new one issued in its place. In July 2014, the Board issued a decision vacating the September 2012 decision. In addition, the Veteran requested that he be afforded a new hearing at the RO. In September 2015, the Veteran was informed that because he had two separate hearings regarding the same issue, the law requires that the Board assign a third VLJ to decide that issue because a proceeding before the Board may be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. He was given the opportunity to have a hearing before the third VLJ who would be assigned to the panel to decide the case. In October 2015, the Veteran waived his rights to a new hearing. Therefore, the Board finds that there is no hearing request pending at this time. See 38 C.F.R. § 20.702(e) (2017). In October 2015, the Board determined that new and material evidence had been received and reopened the claim for entitlement to service connection for hypertension. After the September 2016 remand directives had been completed and the matter returned to the Board, the Veteran was informed in a January 2017 letter that the VLJ who conducted the June 2015 hearing was no longer employed by the Board. The Veteran was offered an opportunity to testify at another hearing. See 38 C.F.R. § 20.707 (2017). In February 2017, the Veteran responded that he did not desire another hearing and requested that the Board consider his claim based on the evidence of record. Therefore, the Board finds that there is no hearing request pending at this time. See 38 C.F.R. § 20.702(e) (2017). As such, adjudication solely by the VLJ who conducted the July 2011 Board Hearing is appropriate. In November 2011, August 2014, October 2015, September 2016, and April 2017, the Board remanded the claim for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's hypertension did not manifest within one year of separation from active service, is not otherwise etiologically related to his service, and was not caused or aggravated by a service-connected disability or due to KBr. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veteran's Claim Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In his January 2018 Appellate Brief, the Veteran, through his representative, asserted that the May 2017 VA examiner, who also provided the October 2016 VA medical opinion, "is not shown to have any particular expertise, experience, training, or competence in commenting on Cardiovascular disorders. Rather, the examiner's specialty is noted as Family Medicine. Absence of competence renders his assessment no more probative than the Veteran's lay assertions that there is nexus to service or his service-connected disabilities." The Board finds that the Veteran's assertions are insufficient to overcome the presumption of regularity applying to government officials, such as VA examiners conducting compensation examinations. The Court has held that there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Both the Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)). The Court held in Cox, 20 Vet App. at 569, that "the Board is entitled to assume the competence of a VA examiner." See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). With regard to the assertion that the examination is inadequate because the physician did not have any particular expertise, experience, training, or competence in commenting on Cardiovascular disorders, the Board finds nothing in the record to question whether the examiner has the requisite qualification to provide a competent medical opinion as to the etiology of the Veteran's hypertension. See Goss v. Brown, 9 Vet. App. 109, 114-15 (1996); YT v. Brown, 9 Vet. App. 195, 201 (1996); and Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (all of which generally stand for the proposition that any health care professional is qualified to render a medical opinion.). Moreover, the examiner reviewed the claims file and provided relevant history and a medical opinion that was supported by medical literature. The examination report set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. In its April 2017 decision, the Board noted that the examiner provided an excellent analysis regarding the etiology of the Veteran's hypertension. Additionally, the Board notes that the opinion is consistent with the evidence of record. 38 U.S.C. § 5103A(d); 38 C.F.R § 3.159(c)(4). Thus, the Board finds the opinion of record is adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. The Veteran and his representative have not raised any other 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 A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran 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). Service connection may be granted on a presumptive basis for certain chronic diseases, including hypertension, if such disease is shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element for certain chronic disabilities listed in 38 C.F.R § 3.309(a) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90 or more or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Veteran is seeking service connection for hypertension. He contends that his hypertension is due to his active service or in the alternative, due to his service connected disabilities. See Appellate Brief dated in January 2017. The Veteran's service treatment records (STRs) noted in February 1987, the Veteran's blood pressure was 150/80. See STRs dated in December 1996, p. 74/112. In December 1988 his BP was 164/94. See STRs dated in December 1996 at 104/159. In October 1988 and September 1990, the Veteran's BP was 130/88. See STR dated in December 1996 at 15/112 and 24/112. In July 1991, the Veteran's blood pressure was 130/88. See id. at 5. The Veteran's other BP readings were within normal range, i.e., from 100/76 to 128/80. See id. at 17; See STRs dated in December 1996 at 81/159. In October 11, 1994, Report of Medical Examination: ETS, the Veteran's vascular system was noted as being normal. See Medical Treatment Record-Government Facility dated in March 1995 at 9. In October 12, 1994, the Veteran's blood pressure reading was 122/68. See id. at 11. In February 1998, the Veteran was seen at a VA medical center for pain in his lower extremities. See Medical Treatment Record-Government Facility, at 1, dated in September 1998. His blood pressure readings were 144/98 and 140/100. The examiner's diagnostic impression was untreated hypertension. See id. After his diagnosis, the Veteran was placed on blood pressure medication. However, the examiners did not provide an etiology for the Veteran's hypertension. See, e.g., VA outpatient treatment records, dated in March 2012, November 2015, October 2016. In July 2011, the Veteran testified at a Board hearing. The Veteran stated that some of his medical records showed that he went to the medical physician for feeling dizzy, being light headed, or for not feeling well. Additionally on several occasions, his blood pressure was elevated. The Veteran stated that he was not diagnosed with hypertension in service. However, he had the symptoms. He stated that in 1998 or 1999 after discharge from service, he had a stroke and was diagnosed with hypertension. In June 2015, the Veteran testified at another Board hearing. The Veteran stated that he first had issues with his blood pressure in 1992 or 1993, i.e., after he returned from Desert Storm. However, he was not diagnosed with hypertension. After discharge from service, the Veteran sought treatment for hypertension in 1996, and eventually, he was prescribed medication. He stated that at one of his checkups, he was given a pill to place under his tongue. He was told that his conditions were due to Gulf War illnesses. The Veteran also stated that while in service, he was given Pyridostigmine Bromide, i.e., a nerve pill which would help to protect against agents or chemical warfare. The Veteran's research revealed that the pill caused, among other things, heart failure and chronic conditions. He further stated that the pill caused high blood pressure. In December 2015, the Veteran was afforded a VA examination to determine the nature and etiology of his hypertension. The examiner reviewed the Veteran's claims file and performed an in-person examination. The examiner confirmed the Veteran's hypertension diagnosis. The examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's STRs documented multiple blood pressure readings; however, the elevated readings were noted in stressful situations, i.e., during acute illness or pain complaints. The examiner further stated that such readings were not representative of baseline blood pressure values for hypertension (HTN) diagnostic purpose. The examiner noted that between service discharge in 1994 and evidence of antihypertensive medication in 2005, the data was not compelling as to HTN diagnosis, and, the first clear evidence of HTN (per medication use) is 2005 which is 11 years after separation. In July 2016, the RO obtained an addendum opinion to address the relationship between potassium bromide and hypertension. The examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the available records did not appear to contain subjective information relating to potassium bromide (KBr). However, the examiner stated that "KBr was used as a sedative and an anticonvulsant. It was also one of the original ingredients in Bromo-Seltzer which was used as a headache remedy. KBr's relevance to blood pressure is demonstrated in a May 1997 Journal of the American Medical Association article [omitted] which concluded that the results supported the use of supplemental potassium intake to prevent and treat HTN. However, the examiner further stated that he was unable to find evidence that the Veteran was prescribed or used KBr during service. In September 2016, the Board concluded that the December 2015 and July 2016 medical opinions were inadequate and remanded the claim for further development. In October 2016, the RO obtained another addendum opinion regarding KBr and hypertension. The examiner reviewed the conflicting medical evidence regarding KBr and its relationship to hypertension. The examiner stated that the lack of FDA approval meant that no drug company had presented information to the agency to prove that KBr was safe and effective to treat seizures. The examiner further stated that no drug company had proven to FDA that the drug can be consistently manufactured according to quality standards. As part of FDA's unapproved animal drugs initiative, several agency employees reviewed published literature on the safety of potassium bromide in dogs. In March 2012, the results were published in the Journal of the American Veterinary Medical Association. Based on a review of the literature regarding KBr published in the Journal of the American Medical Association, the examiner opined that the consistent use of potassium bromide in a form and dosage that would be tolerable would have an expected average impact of lowering an individual's blood pressure by a small but measurable amount, in the range of 5.5 mm systolic and 3 mm diastolic or less. This amount of blood pressure lowering would be statistically significant but would not typically be of a magnitude that it would make the supplement an acceptable anti-hypertensive medication, nor would it obscure blood pressure elevations in excess of 3-6 mm. Regarding the Veteran's in-service blood pressure reading, the examiner noted that a single, isolated elevated blood pressure reading does not establish the diagnosis of hypertension nor does three, four, five, or six readings that are found scattered through years of treatment records with normal blood pressure readings interspersed throughout. The examiner stated that hypertension is defined as a "long-term medical condition in which the blood pressure in the arteries is persistently elevated." Its causes are multifactorial and can include hereditary influences, lifestyle issues such as smoking and obesity, and the gradual atherosclerosis of arteries, which can simply produce a natural progression of elevated pressures with aging. When there is an underlying cause besides the usual gradual or hereditary development, it is termed "secondary hypertension." Various conditions and medications can lead to secondary hypertension, including: obstructive sleep apnea; kidney problems; adrenal gland tumors; thyroid problems; alcohol use or abuse; and certain illegal drugs, such as cocaine and amphetamines. According to the Mayo Clinic, "For most adults, there's no identifiable cause of high blood pressure." The examiner classified the Veteran's hypertension as primary or essential hypertension without an identifiable underling cause. Primary (essential) hypertension tends to develop gradually over many years. The examiner stated that the most likely onset of the Veteran's "hypertension" as a distinct diagnosis would likely be around late 1997 or early 1998 when he had sustained consecutive blood pressure readings in excess of 140/90. Therefore, the Veteran's condition or diagnosis of hypertension was less likely than not to have originated in, or to have been caused by, or to be otherwise etiologically related to his military service. In the course of his review, the examiner reviewed the December 2015 VA examination and did not find any fault in the logic, presentation, or conclusions. In May 2017, the RO obtained an addendum opinion regarding whether the Veteran's service connected disabilities caused or aggravated his hypertension. The examiner reviewed the Veteran's claims file. The examiner opined that the condition claimed is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service connected condition. The examiner stated that the diagnosis of hypertension is made by several separate measurements over time, as hypertension is defined as a "long-term medical condition in which the blood pressure in the arteries is persistently elevated." The examiner stated that the Veteran had not been found to have nor described to have developed "secondary hypertension," or hypertension resulting from another separate cause. The examiner stated that the Veteran had a multitude of other co-morbid conditions, but none that are listed as service connected nor none on his current problem list (with the exception of chronic renal insufficiency) would be associated with contributing to persistent elevation of blood pressure. The examiner noted that kidney failure, or chronic renal insufficiency can lead to hypertension; however, the Veteran is not service connected for his kidney condition. Additionally, the hypertension preceded the kidney disease, so that made it impossible for the latter to have caused the former. Some disabilities, such as anxiety or pain (from headaches, arthritis, gout, neck pain or low back pain) might cause temporary or transient blood pressure elevation but not to a degree of or of a persistent nature for which a medical professional would consider that other condition to be a cause or a contributing factor to the hypertension. The association between hypertension and pain has also been "extensively studied and written about." While acute pain will usually cause a sharp increase in blood pressure (transiently, but not persistently), chronic pain does not hold as high a correlation. As such, it is much more likely than not that the Veteran developed the "regular old hypertension" that typically comes from years of progressive atherosclerotic blockages narrowing the lumen of blood vessels and creating additional pressure within the vessels as blood traverses the partially occluded vasculature. It is less likely than not that the Veteran's hypertension was caused by any one of or any combination of his other service-connected disabilities. Even the service-connected disabilities which cause pain (such as migraine headaches or lumbosacral or cervical strain) would not produce a perpetual, persistent elevation of the Veteran's blood pressure. Based on the evidence of record, the Board finds that the preponderance of the evidence is against service connection on a presumptive, secondary, and/or direct basis. Regarding presumptive service connection, the Board finds that service connection for hypertension on a presumptive basis is not warranted as the record does not show evidence of hypertension within one year of the Veteran's separation from active duty. At his June 2015 Board hearing, the Veteran stated that he sought treatment for his disability in 1996. However, the VA examiner stated that 1997 or 1998 could have been the first competent evidence suggestive of hypertension. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 U.S.C. §§ 1112, 1137 (2012) and 38 C.F.R. §§ 3.307, 3.309 (2017) cannot be applied. Notwithstanding the foregoing presumptive provision, a claimant is not precluded from establishing entitlement to service connection on alternative bases. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board notes that the Veteran has a diagnosis of hypertension. See December 2015 VA Examination. As such, element (1) under Wallin and Shedden is met. Regarding secondary service connection, the Veteran is service connected for, among other things, chronic fatigue syndrome, cervical spine DJD, migraines, right knee arthritis, and irritable bowel syndrome. As such, element (2) under Wallin is met. However, the Board finds that the preponderance of the evidence is against finding a nexus between the Veteran's hypertension and his service-connected disabilities. Therefore, element (3) under Wallin has not been met. The Board notes that the May 2017 examiner opined that the Veteran's claimed condition is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected disabilities. The examiner noted that kidney problems can lead to hypertension; however, the Veteran was not service connected for kidney condition and his hypertension preceded his kidney condition. Therefore, it was impossible for the kidney condition to have caused the hypertension. Regarding the Veteran's contention that pain from his service-connected disabilities caused his hypertension, the examiner noted that acute pain will usually cause a sharp transient increase in blood pressure but not to a degree that medical professionals would consider the other condition to be a cause or a contributing factor to the hypertension. The examiner attributed the Veteran's hypertension to aging. The Board finds the May 2017 opinion to be adequate and reliable and affords it great probative weight. The VA examiner's opinion is based on a thorough review of the record, and contains a sufficient rationale. The examiner considered the Veteran's relevant medical history and contentions when formulating the opinions. Additionally, the Veteran has not submitted competent nexus evidence contrary to the VA examiner's opinion. 38 U.S.C. § 5107(a) (claimant bears responsibility to support a claim for VA benefits). Regarding direct service connection, the Veteran's STRs show numerous blood pressure readings throughout the Veteran's 10 years of service. Some of the diastolic level readings may be considered borderline or hypertensive. For example, in December 1988, the Veterans blood pressure was 164/94. As such, an in-service disease, injury, or event is established. Therefore, element (2) under Shedden is met. However, on review of all the evidence, lay and medical, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's hypertension had its onset during active duty service or is otherwise related to his active service. Therefore, element (3) under Shedden is not met. Despite intermittent readings that may be characterized as borderline or hypertensive, the STRs are absent of any actual diagnosis or treatment for hypertension. On his October 1994 Report of Medical Examination: ETS, the Veteran's vascular system was noted as being normal. Additionally, the October 2016 VA examiner noted that the Veteran was not diagnosed with hypertension until about 1997 or 1998, i.e., three to four years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The Veteran's hypertension was also attributed to aging. In the alternative, the Veteran attributed his hypertension to KBr. The Board notes that during his Board hearing, the Veteran stated that the KBr was administer to protect against agents or chemical warfare not for its blood pressure lowering abilities. Additionally, the October 2016 examiner noted that although the KBr has blood pressure lowering effects, the consistent use of potassium bromide in a form and dosage that would be tolerable would have an expected average impact of lowering an individual's blood pressure by a small but measurable amount, in the range of 5.5 mm systolic and 3 mm diastolic or less. This amount of blood pressure lowering would be statistically significant but would not typically be of a magnitude that it would make the supplement an acceptable anti-hypertensive medication, nor would it obscure blood pressure elevations in excess of 3-6 mm. The Board finds the VA examiner's opinion to be adequate and reliable and afford it great probative weight. The VA examiner's opinion is based on a thorough review of the record, and contains a sufficient rationale. The examiner considered the Veteran's relevant medical history and contentions when formulating his opinions. The Board has considered the Veteran's lay statements asserting that his military service caused his hypertension, or in the alternative, his service-connected disabilities caused his hypertension. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of the Veteran's hypertension is outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007). In summary, the weight of the evidence does not support a finding that the Veteran's hypertension is etiologically related to service. As a result, service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim of service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs