Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
JOHNNIE R. CUMMINGS, APPELLANT,
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Johnnie R. Cummings, appeals, through counsel, an April 14, 2016, Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for hypertension, to include as secondary to his service-connected post-traumatic stress disorder (PTSD) and ischemic heart disease. Record (R.) at 1-12. Both parties submitted briefs and the appellant submitted a reply brief. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 1990).
This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will
affirm the April 14, 2016, decision.
The appellant served in the U.S. Navy from February 1967 to September 1970, including service in the Republic of Vietnam. R. at 1425.
In a June 2009 rating decision, the VA regional office (RO) denied the appellant’s March 2009 claim for entitlement to service connection for hypertension. R. at 1395-1401.
Following a timely appeal, R. at 1361, he submitted a January 2010 letter from his private physician who stated that the appellant “has classic symptoms of PTSD with anxiety and flashbacks with nightmares” and opined that “this is clearly a major driving force for [the appellant’s] hypertension,” R. at 374. In May 2014, the Board remanded the claim and ordered the RO to, inter alia,schedule the appellant “for an appropriate VA examination to ascertain the current nature and likely etiology of his hypertension, to include whether it was incurred in service or is caused or aggravated by a service-connected disability.”1 R. at 808.
The appellant underwent a VA medical examination in June 2014 and the examiner wrote her opinion in July 2014. R. at 237-41. She opined that the appellant’s hypertension “did not incur in the military and was not aggravated by service.” R. at 240. She opined that his PTSD did not cause or aggravate his hypertension and explained that “PTSD does not cause a chronic elevation of [blood pressure].” R. at 241. She noted that, although stress may lead to a temporary increase in blood pressure, that increase is not permanent, and explained that “PTSD would be the same way,” i.e., his blood pressure increase due to PTSD is “only temporary at the moment he is upset[,] not a chronic increase on a day to day basis.” Id. She also opined that his ischemic heart disease did not cause or aggravate his hypertension. R. at 240-41. Ultimately, she stated that the appellant “is overweight with a [body mass index] of 30 and has been for several years” and opined that “[i]t is more likely that his [high blood pressure] is related to being overweight.” Id. She concluded by stating that the appellant’s “increase in [high blood pressure] is a physical condition not
mental/emotional.” Id. The July 2014 examiner included excerpts of information from the Mayo Clinic’s website regarding artery damage. R. at 240-41. In a September 2014 addendum opinion, the July 2014 examiner stated that a review of the private physician’s January 2010 letter did not alter her opinion. Id.
In the decision on appeal, the Board determined that VA satisfied its duty to assist and denied the appellant’s claim. R. at 9. In doing so, the Board afforded little probative weight to the private physician’s opinion—that the appellant’s PTSD is a driving force for his hypertension—as he offered no rationale for it in his January 2010 letter. R. at 7. In contrast, the Board afforded great probative weight to the July 2014 examiner’s opinion, as she based it on a review of the 1 Based on a review of the record of proceedings in this case, the appellant is service connected for type II diabetes mellitus, PTSD, and ischemic heart disease. R. at 2, 806, 1109. He does not argue that his hypertension is related to his diabetes. R. at 8 (noting that the appellant stated his diabetes has nothing to do with his hypertension and finding that the record does not raise the issue); see Cromer v. Nicholson, 19 Vet.App. 215, 217 (2005) (“[I]ssues not raised on appeal are considered abandoned.”), aff’d, 445 F.3d 1346 (Fed. Cir. 2006). claims file, service treatment records, post-service diagnostic reports, medical literature, and the appellant’s reported history and symptoms. R. at 7-8.
The appellant argues that the Board clearly erred when it determined that VA satisfied its duty to assist as the July 2014 VA opinion is inadequate or, alternatively, that it provided an inadequate statement of reasons or bases for that determination. Appellant’s Brief (Br.) at 5-14.
First, he contends that the July 2014 examiner relied on irrelevant medical literature and misinterpreted that same literature. Id. at 7-8. Second, he asserts that the July 2014 examiner’s opinion is based on the inaccurate factual premise that PTSD does not cause a chronic elevation of blood pressure. Id. at 8-14. In reply, the Secretary disputes the appellant’s contentions and argues that the July 2014 opinion and Board’s statement of reasons or bases for its denial of service connection are adequate. Secretary’s Br. at 4-18.
With respect to the appellant’s first argument, he contends both that the Mayo Clinic information that the July 2014 examiner included in her opinion is irrelevant, as it does not expressly address PTSD, and that the examiner misinterpreted that information. Appellant’s Br. at 7-8. However, his arguments amount to a disagreement with the examiner’s professional medical judgment. See Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (VA medical examiners are presumed competent in the absence of clear evidence to the contrary); cf. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (“[T]he first step to overcoming the presumption [of competence] is to object.”). The appellant does not challenge the examiner’s competency; rather, his arguments amount to lay hypothesizing regarding how to appropriately weigh the medical evidence of record, which the Court cannot accept. See Hyder v. Derwinski, 1 Vet.App. 221, 225 (1991) (“Lay hypothesizing . . . serves no constructive purpose and cannot be considered by the Court.”). Indeed, neither the appellant nor his counsel has demonstrated that he possesses the medical expertise to second-guess the examiner’s opinion, and the Court will not accept the appellant’s counsel’s lay assertions attempting to contradict the July 2014 examiner’s opinion. See id.
Turning to the appellant’s second argument, he asserts that the July 2014 examiner’s medical opinion that PTSD does not cause a chronic elevation of blood pressure is inaccurate, as VA has previously found that PTSD can cause hypertension and other cardiovascular diseases resulting from chronic hypertension. 2 Appellant’s Br. at 8-9 (citing Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60,083-01 (Oct. 7, 2004)). Assuming without deciding that the VA Federal Register entry he cites was properly before the Board, a review of the entry reveals that it was written to establish an interim final rule regarding the presumption of service connection for diseases associated with service involving detention or internment as a prisoner of war. See id.
The appellant fails to demonstrate that VA’s finding that there is some correlation between PTSD and hypertension for veterans who were prisoners of war is relevant to his case, as he has not established that he was a prisoner of war. R. at 1117 (May 2011 VA PTSD examination indicating the appellant was not a prisoner of war). Indeed, he fails to demonstrate that VA intended for its position set forth in that Federal Register entry to be applied to other areas of VA disability benefits. The Court concludes that he has not carried his burden of demonstrating error in this regard. See Locklear, 20 Vet.App. at 416; Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
In sum, the Board found the July 2014 opinion adequate. R. at 7-8; see Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (holding that “examination reports are adequate where they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion”). Based on the arguments presented, the appellant fails to show that the Board’s finding is the product of clear error or otherwise inadequately explained. See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (“Whether a medical opinion is adequate is a finding of fact, which the Court reviews under the ‘clearly erroneous’ standard”); see also 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).
After consideration of the parties’ briefs and a review of the record, the Board’s April 14, 2016, decision is AFFIRMED
2 Although the appellant cites an article available on VA’s website regarding identifying and treating PTSD, Appellant’s Br. at 10-11, he does not provide any argument based on that article. Absent further elaboration, his citation is not sufficiently developed to be meaningfully addressed. See Locklear v. Nicholson, 20 Vet.App. 410, 416
(2006) (holding that the Court will not entertain underdeveloped arguments).
DATED: November 6, 2017
Mark H. Lynch, Esq.
VA General Counsel (027)