Citation Nr: 1827477 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 11-19 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for stomach cancer. 3. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety. 4. Entitlement to service connection for a right foot disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1986 to May 1998, including service in Southwest Asia from October 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction has since transferred to the RO in Montgomery, Alabama. In March 2015, the Veteran withdrew his prior request for a hearing. In June 2017, the Board remanded the Veteran's claims to obtain VA medical records and to obtain VA examinations regarding an acquired psychiatric disorder and a right foot disorder. The Board did not order a hypertension examination because such an examination was already of record. The Board did not order a stomach cancer examination because there was no diagnosis of or treatment for stomach cancer. FINDINGS OF FACT 1. The evidence does not support a nexus between an in-service event and hypertension. 2. The evidence does not support a nexus between an in-service event and stomach cancer. 3. The evidence supports a nexus between PTSD and in-service stressors. 4. The evidence does not support a nexus between an in-service event and a right foot disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for stomach cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence, including that dated February 2009 and April 2009, the Veteran was informed of the evidence and information necessary to substantiate the service connection claims, the information required of the Veteran to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. This notice was completed prior to the initial RO adjudication of the claims. The duty to notify has been met. The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. Further, the VA medical examination and opinions of record are adequate, as they are predicated on a substantial review of the record and medical findings, and consider the Veteran's complaints and symptoms. 38 C.F.R. § 3.159(c)(4); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). No additional development is required regarding the examinations that the Veteran failed to attend. Accordingly, the Board finds VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4). II. Service Connection 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, even if the disability was initially diagnosed after 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) 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). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A. Hypertension The Veteran is not entitled to service connection for hypertension because the second and third elements are not established. The first element is satisfied, in that an August 2009 VA examiner indicates that the Veteran has "essential hypertension." Regarding the second element, the weight of the evidence is against an in-service aggravation or occurrence of a disease or injury. The August 2009 VA examiner notes that the Veteran had "some isolate elevated blood pressure readings in a setting of [a September 1991] viral syndrome," but also had readings of 120/80 and 138/92 in July 1991. According to the examiner: "As per medical literature, isolated elevated blood pressure readings do not indicate a diagnosis of hypertension." This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). The Veteran's service treatment records are consistent with the examiner's finding that the Veteran's in-service blood pressure readings do not constitute an in-service incurrence of hypertension. For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Veteran's in-service blood pressure readings are as follows: Date Blood Pressure (systolic/diastolic) 1985/12/12 124/84 1986/05/28 124/89 1988/01/26 125/72 1988/02/28 122/58 1988/06/22 106/60 1988/07/12 110/68 1988/08/05 98/60 1988/09/12 122/78 1990/04/19 124/70 1991/06/19 110/60 1991/07/16 (supine) 120/80 1991/07/16 (standing) 138/92 1991/08/22 132/76 1991/09/15 (1 of 3) 136/68 1991/09/15 (2 of 3) 150/87 1991/09/15 (3 of 3) 152/88 1993/05/18 128/68 1993/05/18 123/75 1998/02/11 138/83 Taken together, these over twelve years of in-service blood pressure readings do not suggest a diastolic pressure that is predominantly greater than 90 mm or a systolic pressure that is predominantly greater than 160 mm with a systolic pressure that is predominantly lower than 90 mm. Rather, on the same day that the only diastolic pressure reading greater than 90 was measured (1991/07/16), a diastolic reading of 80 was measured when the Veteran was in a different position. At no point was a systolic pressure in excess of 160 measured. In concluding that the second element of service connection is not satisfied, the Board notes, as does the August 2009 VA examiner, the Veteran's statements that he has high blood pressure since 1990/91. The Veteran is competent to testify as to what his doctors may have told him about his blood pressure because such facts are within the knowledge and personal observations of lay witnesses. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, even assuming that the Veteran is credible to report what a doctor told him, such testimony is outweighed by post-1991 medical evidence of in-service blood pressures of 128/68, 123/75, and 138/82, as measured in May 1993 and February 1998. These readings are not indicative of high blood pressure since 1991. Consistent with this, a February 1998 letter from the Department of the Army to the Department of Veterans' Affairs (received 5/27/98, page 3 of 111) indicates in-service diagnoses of "Right [T]esticular Cancer" and "Fracture of Metatarsal of right foot with arthralgia and myalgia (service related)" but not hypertension. The Board also notes the relative increase in systolic blood pressure in September 1991, with readings as high as 150 and 152. But those readings are outliers that were measured in the context of treatment for bronchitis. They do not seem indicative of a chronic condition, and by themselves do not meet the definition of hypertension under Diagnostic Code 7101. For these reasons, the Veteran's statements, by themselves or in the context of the evidence as a whole, are insufficient to establish the second element of service connection. Rather, the weight of the evidence as a whole preponderates against the existence of an in-service incurrence of hypertension. The third element, nexus, is also not satisfied. The August 2009 VA examiner notes no in-service diagnosis for or treatment of hypertension. Per medical literature, the Veteran's in-service "isolated elevate blood pressure readings do not indicate a diagnosis of hypertension." Also, as already noted, the second element of service connection is not satisfied. Taken together, the weight of this evidence preponderates against a nexus between the Veteran's current hypertension and service. As the second and third elements of service connection are not satisfied, the Veteran's claim of entitlement to service connection for hypertension must be denied. B. Stomach Cancer The Veteran has not met the criteria for entitlement to service connection for stomach cancer. Regarding the first element, the Veteran's VA treatment records note past history of testicular cancer. They do not note past history of stomach cancer, current diagnosis of or treatment for stomach cancer, or any serious stomach problems. The weight of this evidence is against the existence of a current stomach cancer disorder so as to satisfy the first element of service connection. Regarding the second element, there is ample evidence of in-service testicular cancer, but no evidence of stomach cancer. For testicular cancer, a March 1989 service treatment record (received 5/27/98, page 95 of 111) describes a "right mixed non-seminomatous carcinoma of right testicle." An October 1989 service treatment record (received 5/27/98, page 44 of 111) indicates admission for an elective right testicular prosthesis after removal of tumor in right testicle. A June 1991 service treatment record (received 5/27/98, page 111 of 150) notes a prior "[right] testiculectomy for benign tumor." This evidence is consistent with the in-service testicular cancer noted in the Veteran's VA medical history. By contrast, evidence in the Veteran's service treatment records weighs against the existence of stomach cancer. In a March 1989 service treatment record (received 5/27/98, page 125 of 150), a "Consultation Sheet" submitted to a "Tumor Committee" indicates the presence of a "right testicular mass" and a "1 cm nodule, base of left lung," but makes no mention of stomach cancer. A May 1989 "Narrative Summary" written at the time of the Veteran's hospital discharge (received 5/27/98, page 96 of 111) notes the removal of a right testicular tumor and also states: "Pathology report showed no evidence of tumor outside the testicle." A May 1989 service treatment record (received 5/27/98, page 101 of 150) notes "[t]umor limited to testis, including rete testis" with "[n]o distant metastasis." An October 1989 abdominal CT scan (received 5/27/98, page 56 of 111) notes cystic structures on the left kidney, but no other abnormal findings. A June 1991 in-service CT scan of the abdomen and the pelvis (received 5/27/98, page 23 of 111) indicates that a post-surgical renal cyst has not changed since October 1990, but makes no mention of any sort of stomach disorder. Taken together, multiple service treatment records specifically state that there is no cancer outside of the testes, and in-service abdominal imaging studies specifically investigating the existence of cancer make no mention of stomach cancer. Consistent with this, a February 1998 letter from the Department of the Army to the Department of Veterans' Affairs (received 5/27/98, page 3 of 111) indicates in-service diagnoses of "Right [T]esticular Cancer" and "Fracture of Metatarsal of right foot with arthralgia and myalgia (service related)" but not stomach cancer. The totality of evidence weighs against the existence of in-service stomach cancer. There are only two apparent references to in-service stomach issues. In a July 1997 service treatment record (received 5/27/98, page 25 of 150), the Veteran complains of "stomach ache, spitting up phlegm & vom[iting] x1 day." A December 1992 service treatment record (received 5/27/98, page 49 of 150) indicates similar in-service complaints. Even assuming that the in-service reports of gastrointestinal problems are sufficient to satisfy the second element, service connection must be denied because the third element, nexus, is not satisfied. This is because there is no medical evidence supporting the existence of a nexus between stomach cancer and the Veteran's in-service complaints. The Veteran is not competent to testify as to the origins of stomach cancer because such facts are not within the knowledge and personal observations of lay witnesses. Barr, 21 Vet. App. at 309. Because the first and third elements of service connection are not satisfied, the Veteran's stomach cancer claim must be denied. C. Acquired Psychiatric Disorder The Veteran has filed a claim of entitlement to service connection for an acquired psychiatric disorder, to include anxiety. By correspondence dated August 2017, the Veteran was informed that he was scheduled for a VA psychological examination on August 25, 2017. The Veteran did not attend this examination and has not provided good cause for his failure to attend. In February 2018, the RO issued a supplemental statement of the case (SSOC), stating that since the Veteran had missed his previously-scheduled VA examinations his claims would be decided based on the evidence of the records. The RO continued the denial of the claims. The Veteran did not respond to the February 2018 SSOC. All correspondence was mailed to the same P.O. Box listed in the Veteran's original January 2009 claim for benefits. Since the Veteran failed to appear at an examination relating to an original service connection claim and has not provided cause for doing so, the service-connection claim shall be decided based on the evidence of record. See 38 C.F.R. § 3.655(b). The three elements of service connection are satisfied. Regarding the first element, a May 2010 VA medical record (received 8/8/17, pages 23-24 of 56) contains a diagnosis of PTSD. Regarding the second element, the Veteran served in the Gulf War, and his May 2010 VA psychiatrist notes stressors such as "[e]xposure to combat," "[e]xposure to seeing people injured," and seeing "people who had been crucified by Saddam Hussein in Kuwait." Regarding the third element, the Veteran's Axis I diagnosis is "[p]osttraumatic stress disorder, both military and civilian." This last finding supports a nexus between a current disorder of PTSD and the Veteran's stressors serving in a hostile military environment in Southwest Asia. As the three elements are satisfied, the Veteran is entitled to prevail on his claim of entitlement to service connection for PTSD. No other acquired psychiatric disorder has been connected to service. D. Right Foot Disorder The Veteran has filed a claim of entitlement to service connection for a right foot disorder. By correspondence dated August 2017 and September 2017 (VBMS receipt date 10/6/17), the Veteran was informed that he was scheduled for separate VA foot examinations on September 5, 2017, and September 26, 2017. The Veteran did not attend these examinations and has not provided any sort of good cause for his failure to attend. In February 2018, the RO issued a supplemental statement of the case (SSOC), stating that since the Veteran had missed his previously-scheduled VA examinations his claims would be decided based on the evidence of the records. The RO continued the denial of the claims. The Veteran did not respond to the February 2018 SSOC. All correspondence was mailed to the same P.O. Box listed in the Veteran's original January 2009 claim for benefits. Since the Veteran failed to appear at examinations relating to an original service connection claim and has not provided cause for doing so, the service-connection claim shall be decided based on the evidence of record. See 38 C.F.R. § 3.655(b). The first element of service connection is satisfied, in that VA medical records indicate current right foot disorders. A February 2012 VA medical record (received 8/8/17, page 12 of 56) indicates right foot pain and "early plantar fasciitis right heel and arch." A November 2011 x-ray report (received 8/8/17, page 50 of 56) notes "[t]wo linear foreign metallic bodies . . . in the plantar aspect of the [right] foot." A February 2012 VA medical record (received 8/8/17, page 56 of 185) notes that "x-rays do show a foreign body such as a needle or pin in the right foot . . . ." This constitutes evidence of foot pain and plantar fasciitis so as to satisfy the first element. The second element is also satisfied. A September 1989 service treatment record (received 5/27/98, page 53 of 150) describes the Veteran's right foot stepping on a rusty nail. May 1993 service treatment records (received 5/27/98, pages 18-22 of 150) indicate treatment for a right ankle strain and a cast being reset. Consistent with this, in a February 1998 letter from the Department of the Army to the Department of Veterans' Affairs (received 5/27/98, page 3 of 111), a medical examiner indicates an in-service diagnosis of "Fracture of Metatarsal of right foot with arthralgia and myalgia (service related)." This constitutes evidence of an in-service injury to the right ankle. Unfortunately, the third element is not satisfied. There is no medical evidence supporting the existence of a nexus between the Veteran's in-service injuries to his right ankle and his current right foot disorders. Lay testimony by itself is insufficient to establish nexus for a right ankle injury because such knowledge is outside the knowledge and observations of lay witnesses. Barr, 21 Vet. App. at 309. Because there is no nexus, the Veteran's claim must be denied. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for stomach cancer is denied. Entitlement to service connection for PTSD is granted. Entitlement to service connection for a right foot disorder is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs