Citation Nr: 1736609	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.   12-21 029A	)	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:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

S. Baxter, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1967 to January 1971 and from December 2001 to March 2003.  He also served in the Florida Air National Guard from September 1980 to January 2008, including periods of active duty training (ACDUTRA) and inactive duty for training (INACDUTRA). 

This matter comes before the Board of Veterans' Appeals on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The case was remanded by the Board in March 2016.

The Veteran testified at a January 2016 Board videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A copy of the hearing transcript is associated with the claims file.  


FINDING OF FACT

1.  Hypertension was not manifest in active service or within one year of separation from active service, hypertension was not shown during a period of ACDUTRA and hypertension is unrelated to service.


CONCLUSION OF LAW

The criteria for service connection for hypertension have not all been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2016).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist 

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  In the present case, required notice was provided by letter dated in November 2008.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). 

As to VA's duty to assist, all necessary development has been accomplished.  See Bernard v. Brown, 4 Vet. App. 384(1993).  The Veteran's service treatment records, and VA medical records, have been obtained.  The Veteran was afforded a VA examination in May 2016.  The examination is adequate because, along with the other evidence of record, it provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim.  The examination report was based on an examination of the Veteran by the examiner with appropriate expertise who thoroughly reviewed the Veteran's claims file and was based on a thorough review of the Veteran's medical records.  38 C.F.R. § 3.159 (c)(4)(2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). 

The Board finds that there has been substantial compliance with the Board's prior remand directives.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  Specifically, the RO attempted to obtain National Guard military personnel records and scheduled the Veteran a VA hypertension examination.  The RO informed the Veteran in a September 2016 letter that his military personnel records cannot be located and were unavailable.  The Board acknowledges that the Veteran's military personnel records are incomplete.  In such situations, VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule.  See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  See Russo v. Brown, 9 Vet. App. 46 (1996).

Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.  For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal.

II.  Service Connection- Hypertension 

Service connection may be granted for a disability arising from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110.  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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101 (21), (24) (2016); 38 C.F.R. § 3.6 (a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78   (1991).  ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6 (c)(1). 

Hypertension is a "chronic disease" listed under 38 C.F.R. § 3.309(a).  Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Presumptive periods do not apply to ACDUTRA or INACDUTRA.  See Biggins, 1 Vet. App. at 477-78.

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b). 

For VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters (mm) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note 1(2016).

Where a Veteran served continuously for ninety days or more of active service during a period of war or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 

The Veteran's exposure to Agent Orange has been conceded as noted in the June 2012 Rating Decision.  

VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents.  Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service.  Notably, hypertension is not listed at 38 C.F.R. § 3.309(e); however, the provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to Agent Orange led to the development of the claimed disability after service.  See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107 (b) (West 2015).

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran asserts that his current hypertension disability is due to his military service.  In the January 2016 hearing, the Veteran testified that he was diagnosed with high blood pressure in July 2008.  He stated that while in service he was never prescribed medication for hypertension.  

The service treatment records (STRs) are negative of a diagnosis, treatment, or complaints of hypertension.  The Veteran's November 1966 VA pre-induction examination indicated that the Veteran's blood pressure was 136/7, along with normal heart findings.  The Veteran's November 1970 separation examination revealed that his blood pressure was 110/68, along with normal heart findings.  A February 2003 Medical Assessment shows that the Veteran reported that he was not on any medication. 

A July 2008 VA outpatient treatment record shows that the Veteran reported 
Blood pressures of 130-140s/70s-80s at home but he did not bring in a log.  The assessment included hypertension, new diagnosis July 2008.  

A June 2012 VA diabetes mellitus examination report noted that the onset of hypertension was in July 2008.

In May 2016, the Veteran was afforded a VA examination.  The Veteran reported that his hypertension started in the early 1980's.  He stated that when he enlisted with the Air National Guard in 1980 his blood pressure stayed at 140/180.  He reported that the doctors never put him on medication while he was in the Guard.  He stated that he was told, "well some people have white coat syndrome" while in the National Guard.  He reported that he also had high blood pressure recordings at home.  The Veteran reported that he was prescribed Lisinopril but stopped in 2012 due to an allergic reaction; however, no medication has been prescribed to replace Lisinopril at that time.  The examiner noted that she reviewed the Veteran's claims file.  The examiner indicated that the Veteran's records were reviewed and noted blood pressure readings between July 1980 and January 2007, including a September 2004 VA record that noted that the Veteran's blood pressure was 170/100.  The examiner opined that the Veteran's hypertension is not due to or otherwise related to his service including elevated readings noted by the examiner.  The examiner's rational was that the Veteran was not diagnosed until 2008, which was five years after his active service.  Specifically, on November 8, 1991 and November 6, 2005 the Veteran was seen for acute illness, which could account for his elevated blood pressure.  The November 8, 1991 record revealed that he had pharyngitis and November 6, 2005 record revealed that he was seen for a hand injury.  The second blood pressure reading in November 6, 2005 was better than the first reading.  The examiner stated that he likely had some treatment and time to become calmer.  She noted that it is not unusual for blood pressure to be temporarily elevated during times of acute stress or pain.  She further indicated that there was no evidence of three or five day blood pressure check after those readings.  There was appropriately no diagnosis of hypertension based on one reading alone in acute settings such as those.  The blood pressure reading was elevated on September 12, 2004 and a several day blood pressure check was done afterwards.  The readings were normal for the vast majority, even by the present standards for the diagnosis of hypertension.  The examiner noted that there were two elevated readings on periodic physicals in September 7, 1991 and July 20, 1996.  There was no comment on those readings and likely, at that time they were not considered to be in hypertensive range.  As many subsequent readings were normal, those were not indicative of onset of hypertension.  The examiner opined that his hypertension is less likely as not due to herbicides.  She also noted that the medical literature did not support a cause and effect relationship between herbicide exposure in Vietnam and the subsequent development of hypertension years following the cessation of the exposure hypertension was appropriately not diagnosed. 

In this case, the weight of the evidence does not demonstrate credible evidence of proximity to his active service or within years of his separation active service in 2003.  The first post-service finding indicating hypertension dates to 2008, five years after his active service.  The Board finds that the weight of the evidence does not demonstrate that hypertension was manifested to a compensable degree within one year after discharge from active service in 2003.  Continuity of symptomatology is not established for this claimed disability.  As outlined above, STRs are silent, and as reported by the Veteran, the diagnosis of hypertension dates five years following his separation from active service.  The Board finds that the Veteran's statements as to continuity of symptoms since active service are outweighed by the contemporaneous records, which do not demonstrate continuous symptoms since active service.  

Furthermore, the Board concludes that service connection is not warranted for hypertension.  As noted, presumptive service connection is not warranted on the basis of exposure to herbicides, as hypertension is not among those diseases listed at 38 C.F.R. § 3.309(e).  Moreover, the weight of the evidence does not demonstrate credible evidence of pathology in proximity to active service or within years of separation from active service.  Considering the evidence of record, as the last period of active duty service ended in March 2003, the evidence does not show that the currently diagnosed hypertension had its onset during service, or chronic symptoms in active service, or manifested to a compensable degree within one year of active service. Further, as noted above, because presumptive periods do not apply to ACDUTRA or INACDUTRA, the Board need not consider whether the Veteran had chronic symptoms of hypertension during a period of ACDUTRA or INACDUTRA.  The evidence does not reflect hypertension during any period of ACDUTRA, including prior to the hypertension diagnosis in July 2008.  

Although the Veteran has a current diagnosis of hypertension, there is no nexus between the Veteran's currently diagnosed hypertension and his military service to include exposure to herbicides.  The May 2016 VA examiner explained that current medical literature does not support the notion of a casual effect between herbicide exposure and the development of hypertension.  The examiner further noted that STRs did not document high blood pressure during service and following service there was no diagnosed hypertension until 2008.  The examiner noted that there were elevated blood pressures recorded in his medical records, but none of those rendered a diagnosis of hypertension.  The examiner concluded that it is less likely than not that the Veteran's hypertension is related to his military service.  

The May 2016 examiner discussed her review of medical literature.  There is no indication that the VA examiner was not fully aware of the Veteran's past history or that he misstated any relevant fact.  The Board thus finds the VA examination report to be of greater probative value than the Veteran's unsupported statements.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 
As to the Veteran's belief that his current hypertension is related to service, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the date of onset of the Veteran's hypertension, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377.  Consequently, his statements are not probative. The Veteran has not been shown to have the requisite medical expertise to render a competent medical opinion regarding hypertension.  The question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case.

For these reasons, the Board concludes that the claim of entitlement to service connection for hypertension must be denied as the preponderance of the evidence is against the claim.  The doctrine of reasonable doubt is not applicable in the instant appeal.  38 U.S.C.A § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to service connection for hypertension is denied. 



____________________________________________
K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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