Citation NR: 9741230 Decision Date: 12/12/97 Archive Date: 12/16/97 DOCKET NO. 95-27 033 ) 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 Louis J. George, Associate Counsel INTRODUCTION The appellant served on active duty from June 1967 to June 1969. This claim comes before the Board of Veterans’ Appeals (Board) on appeal from a May 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for hypertension. This appeal originally encompassed entitlement to service connection for post-traumatic stress disorder (PTSD). However, the RO granted service connection in a September 1996 rating decision, and a 100 percent rating was assigned pursuant to a July 1997 rating decision, constituting a full grant of benefits sought on appeal. Accordingly, the claim is not before the Board at this time. In October 1995, the appellant requested service connection for a skin condition due to exposure to Agent Orange. This claim has not been adjudicated and is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection should be established for hypertension. At his personal hearing at the RO, he claimed that he received treatment for hypertension prior to active service, and was initially denied induction into the military in 1965 due to the condition. He claimed that he experienced dizziness while he was in Vietnam, which he attributed to hypertension. He claimed that he began to have problems with his hypertension in 1971, at which time he began to undergo treatment which continues to the present day. In a Statement of Accredited Representation in Appealed Case, the appellant’s representative claimed that the appellant’s hypertension was either aggravated or manifested during active service. Furthermore, the representative claimed that “the mental trauma of exposures to and . . . participation in various mental altering experiences was instrumental in the development of his currently diagnosed hypertension.” The representative referenced the assignment of a 100 percent rating for the appellant’s service-connected PTSD as evidence of the incurrence or aggravation of hypertension in service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the appellant’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 appellant has failed to satisfy 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 appellant currently has hypertension. 2. Hypertension was not reported on induction physical examination in June 1967, and there is no clear and unmistakable evidence that hypertension existed before service. 3. There is competent evidence that the appellant experienced dizziness while in Vietnam. 4. The appellant has not submitted competent medical evidence of a nexus, or link, between his current hypertension and his active service, including his dizziness in Vietnam. 5. The appellant’s claim for service connection is not plausible. CONCLUSIONS OF LAW 1. The presumption of soundness upon entrance into service is not rebutted. 38 U.S.C.A. §§ 1111, 1137 (West 1991); 38 C.F.R. § 3.304(b) (1996). 2. The appellant has not submitted a well-grounded claim for service connection for hypertension. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The appellant’s service medical records show that in the Report of Medical History completed in connection with his preinduction physical examination in May 1964, he indicated no past or present history of high or low blood pressure. He also indicated that he had not been treated for any illness nor had he been consulted or treated by a physician within the previous five years. On induction physical examination in June 1967, he indicated no past or present history of high or low blood pressure in the Report of Medical History. He indicated that he had not been consulted or treated by a physician within the previous five years, and that he had not been rejected for military service because of physical, mental, or other reasons. In the report of physical examination, his blood pressure was 132/84 (systolic/diastolic). His lungs and chest, heart, and vascular system were normal. In a medical history report completed by the appellant in April 1969 related to dental treatment, he indicated that he was not presently under a physician’s care or taking any medications; that he had not ever had heart trouble or abnormal blood pressure; and that he had not ever had fainting spells or shortness of breath. In the Report of Medical History completed by the appellant in connection with his separation physical examination in May 1969, he indicated no past or present history of high or low blood pressure, dizziness, or fainting spells. In the physician’s summary, it was reported that there were no present medical complaints. In the physical examination report, his blood pressure was reported as 124/76 and no abnormalities were reported. The appellant applied for service connection for hypertension and post-traumatic stress disorder (PTSD) in January 1995. He claimed that he hypertension began in 1969, and that he received private and VA medical treatment in 1976 and 1986. The RO associated with the claims folder private medical records from Mt. Sinai Hospital in Miami Beach, Florida, documenting treatment from July to August 1986. The records show that he was admitted with an impression that included hypertensive cardiovascular disease with residual CHF (congestive heart failure), question of CAD (coronary artery disease), and a history of high blood pressure. It was reported in the admission note that the appellant was first diagnosed with hypertension in 1972 when he presented to Memorial Hospital in Hollywood, Florida, with nausea, vomiting, and a headache. At that time, he was admitted for six days and discharged home on Dyazide and potassium. He had never been subsequently followed by any private physician, however, he still took his medication regularly. His blood pressure on admission was 140/100. Subsequent private medical records from Marshall I. Abel, M.D., reveal that in September 1986, the appellant had a history of an intercardiac myxoma, possibly atrial myxoma, with cerebral embolization; and organic mental syndrome secondary thereto. His blood pressure was 130/70. In a private medical statement dated in May 1987 from V.A. Reddy, M.D., of the Mount Sinai Medical Center, Dr. Reddy detailed the appellant’s heart problems, including hypertension. Dr. Reddy noted that the appellant’s hypertension apparently was not well controlled. His blood pressure was 180/110. The impression included severe hypertension; heart disease of uncertain etiology; status post cerebrovascular accident (CVA) after cardiac catheterization in July 1986; and ventricular arrhythmia, ventricular tachycardia, controlled by medication. Subsequent private medical records from Mt. Sinai Medical Center detail the treatment for the appellant’s hypertensive cardiovascular disease. A private medical statement dated in February 1988 from George Paul Bahadue, D.O., indicated that the appellant was first seen in July 1986 for severe abdominal pain, at which time it was found that he had malignant hypertension and heart abnormalities. Dr. Bahadue noted that the appellant was discharged to the VA in April 1987, and that from August 1986 to April 1987 he was incapacitated and disabled. The appellant submitted two lay statements dated in March 1995 and written by his siblings. His siblings said that the appellant “first developed High Blood Pressure (hypertension) as a result of his tour of duty in the military.” The statements went on to state that this diagnosis was based on a routine physical examination that was conducted by their family physician on the appellant’s return from active service, at which time he was diagnosed and treated for the condition. The claims folder contains additional private and VA medical records related to his hypertension. These records include treatment reports related to the appellant’s hospitalization in July 1986 at the Mount Sinai Medical Center, which already were discussed, and laboratory reports related thereto. The above records include private medical reports from Memorial Hospital in Hollywood, Florida. The records show that in August 1976, the appellant was hospitalized with a final diagnosis of acute pulmonary edema and essential hypertension. In the history and physical examination, it was noted that the appellant had a two month history of episodes of shortness of breath and diaphoresis up to two days prior to admission, when the condition became more severe and was associated with diaphoresis. No past medical history of high blood pressure was indicated, although there was a family history of high blood pressure. Blood pressure on admission was 160/120. A contemporaneous hypertensive IVP (intravenous pyelogram) revealed no evidence of renal vascular hypertension. A treatment notation from January 1977 related to a subsequent hospitalization for hypertension. VA medical records from October 1987 to November 1994 include treatment for hypertension. In a treatment notation from January 1994, it was reported that the appellant had a twenty year history of hypertension. On examination in August 1994, his blood pressure was 156/101. The claims folder contains the appellant’s service personnel records. In addition, related to his claim for PTSD, the appellant submitted a statement in which he detailed the combat-related stressors he claimed to have experienced in Vietnam. Of record in the claims folder is a VA medical statement dated in November 1994, in which it was noted that the appellant participated in the Agent Orange Examination Program, and that his examination revealed that he suffered from hypertension and a history of stroke. In a VA medical statement dated in October 1995 from the Post-Traumatic Stress Disorder Clinic, it was noted that the appellant presented with problems regarding the memory of his participation in the killing of Vietnamese civilians. The appellant presented testimony at his personal hearing at the RO. The testimony is summarized in the Contentions of Appellant on Appeal. In addition to his hypertension, the appellant discussed his combat experiences in Vietnam. The appellant was afforded a VA examination for PTSD in December 1995. In the examination report, the examining psychiatrist indicated that the appellant’s past medical history was positive for hypertension, diagnosed in 1967, and a history of an enlarged heart. In August 1996, the RO received from the U.S. Army and Joint Services Environmental Support Group (ESG) documents related to the appellant’s claim for service connection for PTSD. In a rating decision of September 1996, the RO granted service connection for PTSD and assigned a 30 percent evaluation thereto. The RO explained that service connection was granted based on the appellant’s military occupational specialty of light weapons infantryman, and evidence from the ESG showing that the appellant participated in combat. In May 1997, the appellant was afforded a VA examination for PTSD. In the examination report, it was noted that the appellant was diagnosed with hypertension twenty five years before and suffered a stroke in 1985. II. Analysis A. Presumption of soundness and aggravation Initially, the Board will address the appellant’s claim that his hypertension was aggravated during active service. While the rating decision on appeal did not consider the issue of whether the appellant’s hypertension was aggravated during active service, the RO explained the general requirements related to service connection and aggravation in the statement of the case (SOC). The law provides that generally, veterans are presumed to have entered service in sound condition as to their health. See Crowe v. Brown, 7 Vet.App. 238, 245 (1994) (citing 38 U.S.C. § 1111); Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The presumption of soundness provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 1991); 38 C.F.R. § 3.304(b) (1996). The presumption of soundness attaches only where there has been an induction examination in which the later-complained- of disability was not detected. See Crowe v. Brown, 7 Vet.App. at 245 (citing Bagby v. Derwinski, 1 Vet.App. at 227). In this case, the veteran is entitled to the presumption that he was sound on entry into service, except as to defects, infirmities, or disorders noted at the time of entrance, or where clear and unmistakable evidence demonstrates that a disease existed before service. On his preinduction and induction physical examinations conducted in May 1964 and June 1967, respectively, the appellant indicated no past or present history of high or low blood pressure. Physical examination in June 1967 revealed no elevated blood pressure measurement or diagnosis of hypertension. Accordingly, the presumption of soundness attaches. 38 C.F.R. § 3.304(b) (1996). The presumption of soundness may be rebutted by clear and unmistakable evidence that an injury or disease existed prior to service. The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that the veteran’s condition existed prior to service, and if VA meets this requirement, that the condition was not aggravated by service. Crowe v. Brown, 7 Vet.App. at 245 (citing Kinnaman v. Principi, 4 Vet.App. 20, 27 (1993). The burden of proof is a formidable one. Id. In determining whether there is clear and unmistakable evidence that an injury or disease existed prior to service, the Board considers the history recorded at the time of examination together with all other material evidence. 38 C.F.R. § 3.304(b) (1996). In this case, the presumption of soundness is not rebutted. There is no competent evidence to indicate that hypertension was present before active service. Since the presumption of soundness is not rebutted, the Board will consider whether hypertension was incurred in active service. B. Well-groundedness In making a claim for service connection, the appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Generally, a well-grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation.” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In order to be well grounded, a claim for service connection must be accompanied by supporting evidence that the particular disease, injury, or disability was incurred in or was aggravated by active service; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992); Murphy v. Derwinski, 1 Vet. App. at 81. The quality and quantity of evidence required to make a claim well grounded depend upon the issue presented by the claim. When an issue is factual in nature (e.g., whether an incident or injury occurred in service), competent lay testimony, including the appellant’s solitary testimony, may be sufficient to meet the appellant’s burden. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Cartright v. Derwinski, 2 Vet. App. 24 (1991)). Where the determinative issue, however, concerns matters of medical causation or diagnoses, competent medical evidence attesting that the claim is plausible or possible is required. Grottveit v. Brown, 5 Vet. App. at 93 (citing Murphy v. Derwinski, 1 Vet. App. at 81). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1996). In order to establish service connection, either the evidence must show affirmatively that such a disease or injury was incurred in or aggravated by service, or statutory presumptions may be applied. A veteran who has 90 days or more of wartime service may be entitled to presumptive service connection of a chronic disease that becomes manifest to a degree of 10 percent or more within one year from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 1991 & Supp. 1997); 38 C.F.R. § 3.307 (1996). Service connection for hypertensive vascular disease (essential arterial hypertension) may be established on a presumptive basis, as provided above. VA regulations provide that diastolic blood pressure measurements of predominantly 100 or more would meet a compensable level for which service connection may be established on such a presumptive basis. 38 C.F.R. § 4.104, Diagnostic Code 7101 (1996). See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). With chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1996). In the case of a veteran who engaged in combat with the enemy in active service during a period of war, VA shall accept as sufficient proof of any disease or injury alleged to have been incurred by such service satisfactory lay or other evidence of service incurrence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence in such service, and shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 1991). See 38 C.F.R. § 3.304(d) (1996). A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. The third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d 78 F.3d 604 (Fed. Cir. 1996) (table). Truthfulness of the evidence is presumed in determining whether a claim is well grounded. Caluza v. Brown, 7 Vet. App. at 504. C. Review of claim on appeal The appellant currently has hypertension. Private and VA medical records commencing in August 1976 document the appellant’s treatment for hypertension and heart problems. In one such VA outpatient treatment report of August 1994, the examiner noted that the appellant had hypertension for twenty years, and that it was not controlled. His blood pressure was reported as 156/101. A VA medical statement of November 1994 related to his participation in the Agent Orange Examination Program indicated that he suffered from hypertension and a history of a stroke. At his personal hearing at the RO, the appellant claimed that while in Vietnam he experienced dizziness which he attributed to hypertension. In a Statement of Accredited Representation in Appealed Case, the appellant’s representative claimed, in essence, that the appellant’s hypertension was caused by exposure to the same stressors which precipitated his service-connected PTSD. As stated in the September 1996 rating decision which established service connection for PTSD, service department evidence showed that the appellant was a participant in combat in Vietnam. Although the appellant’s service records do not show that any complaints or treatment for dizziness while in Vietnam, the appellant’s claim that he experienced dizziness can be considered to be consistent with the “circumstances, conditions, or hardships” of his combat service. See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1996); Smith v. Derwinski, 2 Vet.App. 137, 140 (1992). Furthermore, the appellant is competent, as a lay person, to say what he personally experienced. However, the fact that the appellant is competent to say that he experienced dizziness in service is not sufficient to show that hypertension was incurred in service. The appellant is not competent, as a lay person, to diagnose hypertension on the basis of his symptomatology. See Grottveit v. Brown, 5 Vet. App. at 93 (1993). Neither is his representative competent to make such a diagnosis, nor are his siblings. Id. Furthermore, the Court has held that 38 U.S.C.A. § 1154 does not absolve a claimant from submitting a well-grounded claim for service connection. Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). Section 1154(b) deals with the question of what happened in service; it is not concerned with the issues of current disability or nexus to service, either of which requires competent medical evidence. Caluza v. Brown, 7 Vet. App. at 498. The appellant has not submitted competent medical evidence of a nexus, or link, between his current hypertension and his active service, including his dizziness in Vietnam. The first medical evidence revealing a diagnosis of hypertension is comprised of inpatient treatment reports related to hospitalization from August to September 1976 at Memorial Hospital in Hollywood, Florida. At this time, the appellant was diagnosed with acute pulmonary edema and essential hypertension. However, no previous history of elevated blood pressure or hypertension was indicated. Although subsequent private medical records from Sinai Medical Center indicate that the appellant had a history of hypertension since 1972, this is not corroborated by objective medical evidence. Nonetheless, this would be over two years after the appellant’s separation from service. In addition, the statement in the report of the VA PTSD examination of December 1995, that hypertension was diagnosed in 1967, appears to have been based on the history as provided by the appellant, without reliance on medical evidence. Although the appellant’s representative has claimed that the same in-service stressors that caused his PTSD contributed to the development of his hypertension, there is no medical evidence establishing such a relationship. Furthermore, the appellant’s representative, as a layman, is not competent to render an opinion as to medical etiology. Robinette v. Brown, 8 Vet.App. 69, 74 (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)). Likewise, the statements by the appellant’s siblings alleging that the appellant first developed hypertension as a result of his active service do not constitute competent medical evidence of a nexus between his active service and his current hypertension. Id. The claim that hypertension was diagnosed on his return from the military is not supported by the objective medical evidence of record. Accordingly, the appellant’s claim for service connection is not plausible. While the statements by the appellant’s siblings referenced treatment of the appellant by the family’s physician, the specific identity of this physician was not provided. Furthermore, the appellant indicated at his personal hearing that the family physicians, whom he claimed to see prior to active service, have died or the records were unavailable. Therefore, VA has no obligation to obtain records relating to this alleged treatment. In a Written Brief Presentation of August 1997, the appellant’s representative cited provisions of the VA Adjudication Procedure Manual M21-1 (M21-1), specifically, Part III, Paragraph 1.03a, and Part VI, Paragraph 2.10f. The representative requested that “[i]f the Board finds that the current claim is not well grounded. . . that the Board determine whether the RO followed the M21-1 substantive rules requiring that full development of all claims be undertaken prior to the well grounded determination.” The representative has requested that if the Board finds that such development in accordance with M21-1 did not occur, then the case should be remanded for full development of the claim. The representative also requested that in the Board’s remand order, the RO be directed to notify the veteran of the one year time limit to produce evidence in accordance with 38 U.S.C.A. § 5103(a). The representative added that if the Board were to deny the appellant’s claim as not well grounded, that the Board address why the loss of an earlier effective date would not harm the appellant, and why the above-referenced M21-1 provisions were not applicable in this case. In this case, the RO properly developed the appellant’s claim by advising him in January 1995 of evidence necessary to substantiate his claim. The RO also associated service department records from the ESG, obtained the appellant’s service medical records, and associated private medical records with the claims folder. Since the RO properly developed the appellant’s claim, the Board will not address the issue of applicability of the M21-1 provisions. Furthermore, since service connection is not established, the issue of entitlement to an earlier effective date is not appropriately raised. ORDER Having found the claim not well grounded, the claim of entitlement to service connection for hypertension is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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 -