Citation NR: 9635173 Decision Date: 12/10/96 Archive Date: 12/19/96 DOCKET NO. 94-28 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Lambrakopoulos, Associate Counsel INTRODUCTION The veteran served on active duty from October 1956 to October 1960. This appeal arises from a June 1993 rating decision of the St. Petersburg, Florida, Regional Office (RO) that denied service connection for hypertension. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that hypertension first became manifest during his active service and that he was treated for high blood pressure during that period, as well as immediately after service. He also argues that the Department of Veterans Affairs (VA) is obligated to fully develop his case and to assist him in the development of his case by notifying him of what evidence is required to render his claim well-grounded. DECISION OF THE BOARD The Board of Veterans’ Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for hypertension is well-grounded. FINDINGS OF FACT 1. The veteran is currently diagnosed with essential hypertension. 2. The service connection claim for hypertension is not supported by competent evidence of a diagnosis of hypertension or high blood pressure during his active service or within one year following his separation from service showing that the claim is plausible or capable of substantiation. 3. Competent evidence attributing hypertension to service has not been presented. CONCLUSION OF LAW The veteran’s claim for service connection for hypertension is not well grounded. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.307(a)(3), 3.309(a) (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question that must be resolved is whether the veteran has submitted a well-grounded claim for benefits as to the disability for which service connection is being sought. 38 U.S.C.A. § 5107(a) (West 1991). Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), “a person who submits a claim for benefits administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” A well-grounded claim is “a plausible claim, one that is meritorious on its own or capable of substantiation.” Robinette v. Brown, 8 Vet.App. 69, 73-74 (1995); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The United States Court of Veterans Appeals (Court) has further held that “[w]here the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is ordinarily required to fulfill the well-grounded- claim requirement of section 5107(a).” Edenfield v. Brown, 8 Vet.App. 384, 388 (1995) (en banc) (emphasis added). Thus, in order for a service connection claim to be well grounded, there must be competent evidence of a current disability, of incurrence or aggravation of a disease or injury in service, and of a nexus between the inservice injury or aggravation and the current disability. Caluza v. Brown, 7 Vet.App. 498, 506 (1995). If the claimant has not presented a well- grounded claim, then the appeal fails as to that claim, and the Board is under no duty under 38 U.S.C.A. § 5107(a) (West 1991) to assist the claimant any further in the development of that claim. Murphy, 1 Vet.App. at 81. Compensation is payable to a veteran “[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. . . .” 38 U.S.C.A. § 1131 (West 1991). For veterans who have met the time-in-service requirements, 38 U.S.C.A. § 1112(a) (West 1991); 38 C.F.R. § 3.307(a)(1) (1995), presumptive service connection is available where hypertension has become manifest to a compensable degree within one year after a veteran’s separation from active service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1) (West 1991); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (1995); see 38 U.S.C.A. § 1137 (West 1991). The evidence in support of the veteran’s claim includes a February 1993 letter from Dr. Edgar W. Sapp, a private family practitioner, who indicated that he had treated the veteran for high blood pressure approximately 20 years earlier. This letter, however, at most, relates to treatment approximately 10 years after the veteran’s separation from active service. Therefore, this letter is insufficient to render the claim well grounded because it refers to treatment for high blood pressure at some point in the early 1970s. The claims folder also includes records of treatment for the veteran’s hypertension in 1983. These medical records do not relate to incurrence of hypertension during active service or within the presumptive period and are, therefore, not sufficient to render the claim well grounded. According to notes for treatment by a private physician in November 1992 and by VA in January 1993, the veteran provided a history of having had high blood pressure since the age of 17. The veteran’s chronology, as reported in these medical records, would thus place the onset of hypertension at some point in 1956 or 1957. However, these medical records do not meet the requirement of competent medical evidence. The Court has stated: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute “competent medical evidence” satisfying the Grottveit [v. Brown, 5 Vet.App. 91, 93 (1993)] requirement. Such evidence cannot enjoy the presumption of truthfulness accorded by Robinette (as to determination of well groundedness) . . . because a medical professional is not competent to opine as to matters outside the scope of his or her expertise, and a bare transcription of a lay history is not transformed into “competent medical evidence” merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet.App. 406, 409 (1995). The November 1992 private physician’s reference to a history of hypertension was preceded by opening quotation marks so as to indicate that this was the veteran’s subjective history, and there is nothing in the notation to “suggest[] that the . . . examiner[] had filtered, enhanced, or added medico- evidentiary value to the lay history through [his] medical expertise.” Ibid. Similarly, the January 1993 VA medical record specifically indicated that the history of hypertension and medication for that condition was given by the veteran. Therefore, as the Court held in LeShore, supra, these medical professionals’ references to the veteran’s description of the onset of hypertension are insufficient to render the claim well grounded. Thus, the only remaining evidence proffered by the veteran in support of his claim is his testimony that he was diagnosed with and treated for hypertension (high blood pressure) during service and in the one-year presumptive period following his separation from active service. The veteran testified that he became lightheaded approximately six months after his entry into active service and that he was treated with medication for high blood pressure. He also indicated that he was subsequently treated for dizziness every three months or so while in active service. However, he has been unable to remember what medications were prescribed. The veteran’s lay testimony as to his diagnosis is insufficient to render his claim well grounded. The Court has held that “the connection between what a physician said and the layman’s account of what he purportedly said . . . is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence.” Robinette, 8 Vet.App. at 77; see also Kirwin v. Brown, 8 Vet.App. 148, 153 (1995) (a layperson’s account of statements made by a physician could not render a claim well grounded). Furthermore, it has not been indicated that the veteran possesses the requisite medical knowledge or expertise to render an opinion on a matter involving medical causation or diagnosis, such as the diagnosis of hypertension or high blood pressure during active service or within the applicable one-year post-service presumptive period. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). The Board is aware that the veteran’s claims file was involved in the 1973 fire that destroyed numerous files at the National Personnel Records Center (NPRC) in St. Louis, Missouri. See O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991) (where service medical records are presumed destroyed in the NPRC fire, Board’s obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened). However, the RO sought to obtain reports from the Surgeon General Office (SGO), only to be informed that the search for SGO records was negative. The Board also finds that the appellant has been informed of the requirements for service connection for hypertension via the issuance of a statement of the case in August 1993 and a supplemental statement of the case in February 1994. Indeed, upon being notified by the veteran that he had been treated for hypertension by various private medical providers since his separation from service, the RO sought to obtain copies of those treatment records directly from the specified physicians and indirectly from the veteran. Those efforts, however, were by and large unsuccessful or resulted in the RO’s receipt of evidence that is insufficient to render the claim well grounded. The Board notes that, on one occasion, the RO was informed that the records of a Dr. Greenwell had been sent to a second physician. However, upon seeking to obtain any available records from the second physician, the RO did not receive any response as to the whereabouts of those records. Thus, the RO not only has informed the veteran of the need to obtain that medical evidence himself, but also has sought to obtain the evidence specified by the veteran as supporting his claim. No further obligations exist upon VA under Robinette, 8 Vet.App. at 80. The Board has also considered the veteran’s contention that the case should be remanded on the ground that VA has extended the duty to assist to claims that are not well grounded. In support of that argument, the veteran refers to VA ADJUDICATION PROCEDURE MANUAL M21-1 (M21-1), Part III, 1.03(a) (Feb. 3, 1996), Part VI, 2.10(f). He argues that, to the extent the relevant provisions in M21-1 have limited administrative action, those provisions are the equivalent of VA regulations and are applicable to this claim. See Hayes v. Brown, 5 Vet.App. 60, 67 (1993); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990). First, the Board notes that it is bound by the applicable statutes and regulations pertaining to VA and precedential opinions of the Office of the General Counsel of VA. 38 C.F.R. § 19.5 (1995). However, the Board is specifically not bound by VA manuals, circulars, or other administrative issues. Ibid. Moreover, the cited provisions of M21-1 have not been promulgated pursuant to the regulatory requirements of 38 C.F.R. § 1.12 (1995). See also 61 Fed. Reg. 11309 (1996) (deleting 38 C.F.R. § 1.551 (1995)). Second, the cited provisions of M21-1 that require full development of a claim during the pendency of a determination on the threshold issue of well-groundedness do not stand for the proposition that the duty to assist extends to claims that are not well grounded. Third, the veteran’s arguments are moot because VA has complied with any policy implicit or explicit in M21-1 regarding development of non-well-grounded claims by attempting to obtain the evidence relied upon by the veteran and by informing him of the evidence needed. VA sought to obtain the veteran’s service medical records, but was informed that the records had been destroyed in the 1973 NPRC fire. The RO also sought to obtain any information regarding the veteran through the SGO, but was informed that no such records could be obtained using the veteran’s service serial number. Additionally, as noted above, the RO has sought to obtain records of all private medical treatment specified by the veteran. The Board finds that the RO’s development of the evidence in this case was as full and thorough as possible, under the circumstances, and that the RO has sought all available avenues of obtaining evidence on the veteran’s behalf. The veteran contends in his November 1996 brief that “it is certain that the VA is extending the duty to assist to some claimants who file claims that are not well-grounded.” Brief at 4 (citing Vitarelli v. Seaton, 359 U.S. 535, 539 (1959) and Grivois v. Brown, 6 Vet.App. 136, 140 (1994)). The Court has also stated that “the Board is free to express an opinion on a constitutional claim.” Suttmann v. Brown, 5 Vet.App. 127, 139 (1993); see also Saunders v. Brown, 4 Vet.App. 320, 326 (1993). However, the Board rejects the premise that it has the power of adjudication of the constitutionality of the pertinent laws or regulations or administrative issues because such is beyond the jurisdiction of this administrative branch. Johnson v. Robinson, 415 U.S. 316, 94 S.Ct. 1160. In this case, however, the veteran has not presented evidence of actual disparate treatment. Moreover, his argument is predicated on the erroneous interpretation of M21-1 provisions that do not, in fact, alter the requirement that a well-grounded claim must be submitted prior to the triggering of the duty to assist. Therefore, the veteran’s “disparate” treatment argument is unsupported in law or in fact. The veteran also contends that it is unfair to deny a claim as not well grounded without first informing the claimant of the need to submit competent medical evidence. The Board reiterates that the RO undertook all possible efforts to inform the veteran of what evidence was needed to complete his application. See 38 U.S.C.A. § 5103(a) (West 1991); Robinette, 8 Vet.App. at 80. The veteran also contends that a failure by the RO to fully develop his case is not harmless error and that a recent precedential opinion of the Court, Meyer v. Brown, __ Vet.App. __, No. 94-850 (Oct. 7, 1996), is not applicable here because it did not involve consideration of the M21-1 provisions that are central to the veteran’s argument here. As noted above, the RO fully developed the veteran’s claim: it informed him of the evidence needed, sought to obtain service and post-service medical records, and issued a rating decision. As the veteran notes, the Court held in Meyer, __ Vet.App. at __, slip op. at 11, that “when an RO does not specifically address the question whether a claim is well grounded but rather . . . proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded-claim analysis.” The veteran, however, contends that there is prejudice because a claimant who is denied service connection for lack of a well-grounded claim by the Board while having been denied service connection on the merits by an RO will be deprived of an effective date based on the initial, not-well-grounded claim. The Board notes, however, that the relevant caselaw, including Meyer, does not use such an expansive test of prejudice. Rather, the test of prejudice is whether or not the veteran has been able to present his or her case in the context of this claim. The veteran was given an opportunity to complete his application for benefits, but he was unable to do so due to a lack of medical records from the specified medical providers. Thus, the veteran was not harmed by the RO’s adjudication in terms of his ability to present his case, and the RO’s failure to provide the well-grounded-claim analysis was not prejudicial to the veteran. See Bernard v. Brown, 4 Vet.App. 384, 393-94 (1993); O.G.C. Prec. 16-92 (July 24, 1992). Finally, the Board notes that, at his January 1994 hearing, the veteran testified that several physicians treated him immediately after his separation from service. In particular, he testified that he was first seen by a “Dr. Green” immediately after separation and was treated by a “Dr. Gatlin” for high blood pressure within six months after separation. The Board believes, however, that “Dr. Green” actually refers to Dr. G. R. Greenwell and that “Dr. Gatlin” actually refers to Dr. Benjamin F. Gatliff. See, e.g. Henderson v. Brown, 6 Vet.App. 45, 47 (1993) (Court held that references at a hearing to a particular physician were actually references to another physician and that there was probably an error in transcription of the name at the hearing). In both instances, the RO sought to obtain any relevant treatment records regarding the veteran’s claim from those two physicians (and in the case of Dr. Greenwell, from an alternative source). Moreover, the veteran did not specify at the hearing or at any time thereafter that the RO should seek evidence from private physicians who are different from those already contacted by the RO. Therefore, the Board finds that the veteran’s claim for service connection for hypertension is not well grounded. ORDER Service connection for hypertension is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -