Citation Nr: 1829520 Decision Date: 06/11/18 Archive Date: 06/27/18 DOCKET NO. 07-14 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a disability manifested by blood in the stool. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. E. Griffith, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 1985. He had an additional 22 years of service in the Reserves, which included periods of inactive duty for training, active duty for training, and special active duty. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in July 2010 before a Veterans Law Judge who has since retired. A transcript of the hearing is associated with the file. The Veteran was offered another hearing before another Veterans Law Judge, but he declined. The case was previously remanded by the Board to obtain outstanding reserve records elucidating the Veteran's inactive duty for training (IDT), active duty for training (ACDUTRA), and special active duty. After the records were not obtained, the Board and Court of Appeals for Veterans Claims remanded the case again to complete development of the reserve records. Reserve records listing the dates of the Veteran's were subsequently obtained and associated with the claims file, including a listing of the Veteran's periods of reserve duty, delineated by IDT, ACDUTRA, and special active duty. Accordingly, the Board finds that the development has been completed and the RO has complied with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the issues of entitlement to an initial compensable rating for hearing loss, an increased initial rating for right knee disability and an earlier effective date for the assignment of service connection for tinnitus were remanded for issuance of a statement of the case. This was accomplished in December 2015. In a substantive appeal filed later that month the Veteran requested a hearing on those issues. Thus, they will be the subject of a future Board decision, if in order. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's hypertension is related to his active service. 2. The weight of the evidence is against a finding that the Veteran's disability manifested by blood in the stool is related to his active service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for hypertension have not been met. 38 U.S.C. § 1101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309(a) (2017). 2. The criteria for establishing service connection for a disability manifested by blood in the stool have not been met. 38 U.S.C. § 1101, 1112, 1131, 1137, 5107; 38 C.F.R. § 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural duties Neither the Veteran nor his representative has raised any issues with respect to 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 a duty to assist argument). II. Service connection Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a Veteran must 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-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of a complex medical disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b) (2012). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hypertension Certain chronic diseases (including hypertension) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for hypertension). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2017). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Hypertension is classified as a "chronic disease" under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Initially, the Board notes that service personnel records show active duty from August 1982 to August 1985, with only periods of ACDUTRA and IDT thereafter. At his July 2010 hearing, the Veteran's representative suggested that during his time in the reserves the Veteran occasionally served on "special active duty" which "is the same type of orders and authority as any regular active duty Army soldier." To the extent the Veteran is asserting that this service was active duty, as defined by 38 U.S.C. § 101(22), the Board disagrees. Relevant to this case, "active duty" means full-time duty in the Armed Forces, other than active duty for training. 38 U.S.C. § 101(22) (2012). For VA purposes, hypertension means that the diastolic blood pressure is predominately 90 millimeters (mm.) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominately 160mm. or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101 Note (1) (2017); See also Gill v. Shinseki, 26 Vet. App. 386 (2013). The Veteran contends that his hypertension is related to his reserve service. For the reasons below, the Board finds that service connection is not warranted. The record is clear that the Veteran currently has hypertension. For example, a private treatment record from March 2005 shows a diagnosis of hypertension. Thus, the remaining question is whether the Veteran's hypertension is related to service. The evidence does not suggest, and the Veteran does not argue, that he had hypertension during his active duty service or that hypertension is otherwise related to his period of active duty. The Veteran states that he first had elevated blood pressure readings in 2002, while in the reserves. Additional reserve records obtained as a result of the last Board remand include dates the Veteran was on ACDUTRA and special active duty. The records reflect that the Veteran served from June 29, 2001 to July 13, 2001, October 12, 2001 to October 27, 2001, August 30, 2002 to September 11, 2002, September 12, 2002 to September 15, 2002, August 29, 2003 to September 12, 2003, and August 6, 2004 to August 22, 2004. The additional records do not reflect an in-service event or occurrence of hypertension and do not correspond to The first report of elevated blood pressure by the Veteran was seen during a report of medical history in connection with a service retention examination in January 2002. Specifically, he reported that when he eats food or become physically active he somehow breaks out in hives and his blood pressure goes up. In addition, he noted that lately he had been having headaches with a rise in blood pressure and that he was going to a civilian hospital to determine if he had high blood pressure. Blood pressure at that examination was 136/83. Prior to this, the Veteran denied having high blood pressure on multiple occasions, such as at his separation examination in August 1985. VA treatment records show an elevated blood pressure reading of 138/96 in October 2002. An assessment of rule out hypertension was noted at that time. A review of the record reveals that a diagnosis of hypertension was first noted in medical records in March 2005. Considering the newly obtained records of ACDUTRA, IDT, and special active duty, there is no evidence to suggest the Veteran's hypertension was incurred or aggravated during any period of active service. The evidence also does not support service connection for hypertension on a presumptive basis. The Veteran has acknowledged that there was no hypertension during his active service ending in 1985, as evidenced by the August 1985 separation examination, nor did hypertension develop to a compensable level within one year of his separation from active service. While the Veteran was diagnosed with hypertension during the time period when he was still a member of the reserves, there is no competent evidence linking hypertension to the Veteran's military service. There is no medical evidence suggesting any such link, and the Veteran and his representative have not identified any outstanding medical evidence that would provide this link. While the Veteran contends that he developed hypertension as a result of exposure to heat during reserve service, he is not competent to make such an assertion and, in any event, only active service periods are relevant here. See Jandreau, 492 F.3d at 1377. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Determining the etiology of hypertension is not a matter that can be observed, and requires specialized education, training or experience. See Jandreau, supra. Service connection for hypertension is also not warranted based on a theory of aggravation. A claimant seeking benefits based on aggravation of an injury or disease during ACDUTRA has the burden of showing that he experienced a permanent increase in disability beyond the natural progress of that disease or injury during his period of ACDUTRA. See Donnellan v. Shinseki, 24 Vet. App. 167, 174 (2010). In this case, the Veteran has offered no evidence indicating that his hypertension increased beyond the natural progress of that disease during a period of ACDUTRA. The Board notes that a mere showing of an increase in disability during the time the Veteran was a member of the reserves would not be enough; rather, there must be a worsening during a period of ACDUTRA. There is no evidence of worsening or aggravation beyond the natural progress of the disease in this case. The Veteran has not contended that he developed hypertension during his period of active service ending in August 1985, nor does he contend that it was manifest to a compensable degree within the one year presumptive period. Furthermore, the evidence does not support service connection on a theory of aggravation or incurrence during periods of ACDUTRA or special active duty. For the reasons above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's hypertension was caused or aggravated by his active or reserve military service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a hypertension disability is denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Blood in stool The Veteran contends that his disability manifested by blood in the stool should be service connected due to his reserve service. For the reasons below, the Board finds that service connection is not warranted. The Veteran reports having blood in his stool; has been diagnosed with hemorrhoids, and as noted in a March 2005 private treatment record, has peptic ulcer disease status post partial gastrectomy. A current disability is shown by the record. The remaining element is whether a current disability manifested by blood in the stool is related to service. The evidence does not suggest, and the Veteran does not argue, that he had blood in his stool during his active duty service or that a disability manifested by blood in his stool is related to his period of active duty. Instead, the Veteran stated that he started having blood in his stool while a member of the reserves. A review of the record reveals that the first complaint by the Veteran of blood in the stool was during a report of medical history in connection with a service retention examination in January 2002. Examination of the anus and rectum was normal at that time. VA treatment records reflect that in October 2002 the Veteran complained of occasional constipation and hemorrhoids to where he had bright red blood in his stool. In January 2008, the Veteran again complained of guaiac positive stools. A colonoscopy showed internal hemorrhoids. Again considering the additional records of reserve service, the Board notes that while the Veteran complained of blood in his stool and was diagnosed with a disability manifested by blood in the stool during the time period when he was still a member of the reserves, there is no competent evidence linking a disability manifested by blood in the stool to a period of active service. There is no medical evidence suggesting any such link, and the Veteran and his representative have not identified any outstanding medical evidence that would provide this link. Service connection for a disability manifested by blood in the stool is also not warranted based on a theory of aggravation. As noted above, it is the claimant's burden to show that he experienced a permanent increase in disability beyond the natural progress of a disease or injury during his period of ACDUTRA. See Donnellan, 24 Vet. App. at 174. In this case, the Veteran has offered no evidence indicating that a disability manifested by blood in the stool increased beyond the natural progress of that disease during a period of ACDUTRA or special active duty. The Veteran has not suggested any such progression, nor does the evidence support it. In sum, there is no contention or evidence that the Veteran's disability manifested by blood in the stool developed during active service, nor medical evidence linking it to active service. There is no evidence suggesting that the disability increased beyond its natural progression during a period of ACDUTRA or special active duty. Given the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a disability manifested by blood in the stool that was caused or aggravated by his active or reserve military service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a disability manifested by blood in the stool, also claimed as hemorrhoids, is denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a disability manifested by blood in the stool is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs