Entitlement to service connection for hypertension
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Citation Nr: 1719825
Decision Date: 06/05/17 Archive Date: 06/21/17
DOCKET NO. 06-35 874 ) 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: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The Veteran served on active duty with the United States Army from October 1978 to April 1985.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA).
In April 2009, the Board remanded the appeal for additional development. After the development was completed, the Board denied the appeal in a November 2009 decision. In December 2009, the Veteran requested reconsideration of the November 2009 Board decision, pursuant to 38 C.F.R. § 20.1000 and 20.1001. In September 2010, the Board vacated its November 2009 decision and remanded the claim for further development. In a May 2012 decision, the Board again denied service connection for hypertension.
The Veteran appealed the May 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2013, the Veteran and the Secretary entered into a joint motion for remand (JMR) in which it was agreed to vacate and remand the Board decision to the extent that it denied service connection for hypertension. In October 2013 and in April 2014, the Board again remanded the appeal for additional development.
In an October 2014 decision, the Board again denied service connection for hypertension. The Veteran appealed the October 2014 Board decision to the Court. In December 2015, the Veteran and the Secretary entered into a JMR in which it was agreed to vacate and remand the Board decision to the extent that it again denied service connection for hypertension.
In May 2016 and June 2016 the Board received Veterans Health Administration (VHA) opinions and thereafter provided the Veteran and his representative with notice of the VHAs. In September 2016, the Board received the Veteran's reply to the VHAs which reply, among other things, acknowledged receiving them. Therefore, the Board finds that it may adjudicate the current claim.
Since issuance of the most recent supplemental statement of the case, additional evidence was added to the claims file. Nonetheless, the Board finds that it may adjudicate the appeal without first remanding this evidence for agency of original jurisdiction (AOJ) review because in January 2016, November 2016, January 2017, and March 2017 the Veteran's representative waived such review. See 38 C.F.R. § 20.1304(c) (2016).
FINDING OF FACT
The preponderance of the evidence of record shows that the Veteran's hypertension is not related to service and hypertension did not manifest itself to a compensable degree within one year of service.
CONCLUSION OF LAW
Hypertension was not incurred in or aggravated by military service and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran contends that service connection for hypertension is warranted because the disease is either related to or had its onset in service. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Moreover, the Board finds that the post-JMR development, to include obtaining the VHA opinions, substantially complies with the Court's December 2015 JMR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); See also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.).
Service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a) which disabilities includes hypertension. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including hypertension will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2016); 38 C.F.R. §§ 3.307, 3.309 (2016).
In order to establish service connection for the claimed disability, there must be (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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995).
As to a current disability, the post-service record shows the Veteran being diagnosed with hypertension. See, for example, VA examination dated in June 2009.
As to service incurrence under 38 C.F.R. § 3.303(a), service treatment records show the Veteran had elevated blood pressure readings of 142/98 and 140/90, in May and December 1984. Moreover, during the course of his appeal the Veteran stated that he was told by medical staff in service that his blood pressure readings were high and was asked on multiple occasions if he had high blood pressure to which he responded no because he had not been diagnosed at that time.
However, the May and December 1984 blood pressure readings were taken at a time when the Veteran was being treated for a trauma-a puncture wound. Additionally, the May and December 1984 elevated blood pressure readings, standing alone, cannot provide the diagnosis of hypertension because VA requires that blood pressure readings must be taken two or more times on at least three different days to support a diagnosis of hypertension. See 38 C F R § 4 104, Diagnostic Code 7101 (Note 1) (2016). Similarly, and as will be explained in more detail below, the Board finds that the most probative evidence of record are the May and June 2016 VHA opinions in which it was opined that the Veteran did not meet the criteria for a diagnosis of hypertension while on active duty despite his documented elevated blood pressure readings. See Owens. Moreover, the service treatment records, including those from May and December 1984, are negative for complaints or a diagnosis of hypertension. In fact, the Board notes that in December 1983, March 1984, and February 1985 service records the Veteran reported, in essence, that he never had or was treated for hypertension. Further, while the Veteran as a lay person is competent to report on his symptoms of hypertension because this requires only personal knowledge as it comes to him through his senses, the Board finds that he is not competent to provide a diagnosis of hypertension because such an opinion requires medical expertise which he does not have. See Davidson. Therefore, the Board finds more compelling the service treatment records, including the May and December 1984 treatment records, which is negative for a diagnosis of hypertension than any claim by the appellant that he had problems with hypertension while on active duty. See Owens.
Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have hypertension while on active duty. Id. Therefore, the Board finds that entitlement to service connection for hypertension must be denied based on in-service incurrence despite the two elevated blood pressure readings seen while on active duty and despite the Veteran's claims regarding having problems with observable symptoms of this disability while on active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).
As to the presumptions found at 38 C.F.R. § 3.309(a), and as will be explained in more detail below, the Board finds that the most probative evidence of record are the May and June 2016 VHA opinions that the Veteran did not meet the criteria for a diagnosis of hypertension in the first post-service year despite his documented elevated blood pressure readings. See Owens. Accordingly, the Board finds that entitlement to service connection for hypertension must be denied on a presumptive basis. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309.
As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from active duty in 1985 and the first diagnosis of hypertension in the late 1990's to be evidence against finding continuity. See, e.g., Dr. Edward Braun's treatment records dated from March 1999 to December 2004. In this regard, the Board notes that while the record documents the fact that the Veteran had, on occasion, elevated blood pressure readings prior to this time including when being treated for a stab wound to the arm at VA in August 1985, the record during this time was nonetheless negative for a diagnosis of hypertension.
Similarly, the Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with observable symptoms of hypertension, such as dizziness, since service. See Davidson. However, upon review of the claims file, the Board finds that the lay accounts from the Veteran and others that the appellant has had his hypertension since service are not credible. In this regard, these lay claims are contrary to what is found in the service and post-service records including the service treatment records that document elevated blood pressure but did not thereafter diagnose hypertension, the service treatment records in which the Veteran denied having high blood pressure, and the other service treatment records that did not diagnose him with hypertension. Post-service, the Board finds the fact that in a November 1993 VA treatment record the Veteran specifically denied a history of hypertension and the fact that the post-service records prior to the mid-1990's do not note a history or provide a diagnosis of hypertension also weighs heavily against the claim of continuity.
In these circumstances, the Board gives more credence and weight to the negative service treatment records as well as the negative post-service treatment records and the Veteran's contemporaneous statement that he did not have a history of hypertension, than any current claims by the Veteran and his representative to the contrary. See Owens. Therefore, entitlement to service connection for hypertension based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(b).
As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), in an October 2009 opinion Craig N. Bash, M.D., M.B.A., indicated that the Veteran had many elevated blood pressure readings in service at the 142/98 level and 140/90 in 1984. He opined that the Veteran had hypertension (diastolic and systolic) in service and stated that this finding was apparent from the above record. He further indicated that the hypertension is related to service, as the Veteran's records do not support another etiology. Thereafter, in October 2011 Dr. Bash submitted a nearly identical opinion to the one he provided in October 2009. Subsequently, Dr. Bash submitted another opinion in December 2013. In this regard, after a review of the record on appeal Dr. Bash opined that it is as likely as not that the Veteran had hypertension while in the service based on the "Joint National Committee 7" definition for hypertension. He thereafter opined that the Veteran's current high blood pressure is due to his service time hypertension as his records do not support another etiology. In support of this conclusion, Dr. Bash cites to the Veteran's blood pressure readings while on active duty in 1984 that were at 142/98 and 140/90 levels and his blood pressure readings post-service in 1985 at the Bronx VA Medical Center which were at the 142/96 level for a period of five days.
On the other hand, at the June 2009 VA examination the examiner opined that the Veteran's current hypertension disorder was not related to service after examining the clamant and reviewing the claims file. The rationale was that there was no treatment for essential hypertension, or any such diagnosis, in service or within a year of discharge. The examiner explained that the only noted elevated blood pressure reading was on May 12, 1984, and this occurred with an acute puncture wound. The examiner explained that the acute injury caused that elevated blood pressure reading. The private medical records from 1985 to 1993 did not document any diagnosis of hypertension, and another elevated blood pressure reading in 1985 was with an acute stab wound only. That injury was also acute in nature and resulted in elevated blood pressure, but not a diagnosis of hypertension. The Veteran was not treated for hypertension until 1994, many years after discharge from service.
Similarly in the September 2010 addendum, after reviewing Dr. Bash's opinion the VA examiner reaffirmed her conclusion that the Veteran's hypertension was not caused by or related to his military service. The examiner's clinical rationale was identical to that provided in June 2009.
Likewise, at the December 2013 VA examination after a review of the record on appeal including Dr. Bash's opinions and examination of the Veteran, it was opined that it is not at least as likely as not that any hypertension or hypertensive vascular disease is etiologically related to or had its onset in service to include his May 1984 elevated blood pressure readings and it is not at least as likely as not that any hypertension or hypertensive vascular disease became manifest within one year of his discharge from active duty. In support of its conclusion that the Veteran's hypertension/hypertensive vascular disease was not related to service, the examiner reasoned as follows:
REVIEW OF THIS VETERAN SERVICE MEDICAL RECORDS WAS ACCOMPLISHED. ALL OF THE BLOOD PRESSURE READINGS RECORDED WHILE THIS VETERAN WAS ON ACTIVE DUTY FROM 1978 UNTIL 1985 WERE REVIEWED.
ALL OF THE SYSTOLIC AND ALL OF THE DIASTOLIC READINGS DOCUMENTED ON ACTIVE DUTY WERE < 140 SYSTOLIC AND < 90 DIASTOLIC EXCEPT FOR 2 READINGS BP READINGS:
MAY 12, 1984 = 142/98 AND DECEMBER 5, 1984= 140/90.
ACCORDING TO JOINT NATIONAL COMMISSION 7, THE DEFINITION OF HYPERTENSION IS A PATTERN OF BLOOD PRESSURE READINGS >140 SYSTOLIC AND/OR >90 DIASTOLIC. BUT THE UP-TO-DATE DEFINITION INCLUDES SEVERAL IMPORTANT POINTS:
1. 'A PATIENT SHOULD NOT BE LABELED AS HAVING HYPERTENSION UNLESS THE B.P. IS PERSISTENTLY ELEVATED AFTER 3-6 VISITS OVER A SEVERAL MOS. PERIOD.'
2. ACCORDING TO 'UP-TO-DATE" MEDICAL SOURCE REGARDING THE ACCEPTABLE WAY TO MEASURE B.P. IN A SUSPECT FOR DIAGNOSIS OF HYPERTENSION IS AS FOLLOWS' 'THESE DEFINITIONS APPLY TO ADULTS ON NO ANTIHYPERTENSIVE MEDICATIONS AND WHO ARE NOT ACUTELY ILL.'
THIS VETERAN WAS SEEN IN THE EMERGENCY ROOM FOR BOTH OF THE ELEVATED B.P. READINGS. THE READING OF MAY 12, 1884 WAS FOR A 'PUNCTURED LEFT HAND,' AND THE READING OF 12-5-1984 WAS FOR A 'PUNCTURE WOUND LEFT PALM.' THUS, BOTH THESE BLOOD PRESSURE READINGS WOULD NOT QUALIFY IN ANY FORMAL DIAGNOSIS OF HYPERTENSION, SINCE A NORMAL PERSON MAY HAVE ELEVATION IN BLOOD PRESSURE DURING AN ACUTE INJURY OR ILLNESS.
ALL THE OTHER ACTIVE DUTY B.P. READINGS WERE NOT >140/90.
THIS PERSON WAS EVENTUALLY DIAGNOSED WITH ESSENTIAL HYPERTENSION ABOUT 1990. IN A LETTER OF CLAIM DENIAL DATED APRIL 8, 2005, A DOCUMENT THAT THIS VETERAN SIGNED CALLED 'HEALTH CARE PROVIDER CERTIFICATION' DOCUMENTS THAT THIS VETERAN STATED HIS HYPERTENSION COMMENCED IN 1990.
RECORDS FROM HIS PRIMARY CARE DOCTOR, DR. EDWARD BRAUN, IN A PATIENT SUMMARY REPORT DATED 12-21-2004, NOTES THAT HE DIAGNOSED "ESSENTIAL HYPERTENSION, AFTER DOING SUCH TESTS AS A CAPTOPRIL RENAL SCAN AND 24 HOUR URINE METANEPHRINES TO RULE OUT OTHER CAUSES.
ACCORDING TO THE MEDICAL SOURCE 'UP-TO-DATE, MOST PEOPLE WITH THE DIAGNOSIS OF HYPERTENSION HAVE "ESSENTIAL HYPERTENSION:'
'Most patients with hypertension have primary (essential) hypertension. The pathogenesis of primary hypertension is poorly understood. Numerous risk factors for developing hypertension have been identified, including black race, a history of hypertension in one or both parents, a high sodium intake, excess alcohol intake, excess weight....'
THUS, ACCORDING TO UP-TO-DATE, WHAT IS THE ETIOLOGY OF THIS VETERAN'S HYPERTENSION?
'The pathogenesis of primary hypertension is poorly understood. Numerous risk factors for developing hypertension have been identified, including black race, a history of hypertension in one or both parents, a high sodium intake, excess alcohol intake, excess weight....'
THIS VETERAN DID HAVE THE FOLLOWING RISK FACTORS FOR ESSENTIAL HYPERTENSION:
1. BLACK RACE[;]
2. FAMILY HISTORY OF HYPERTENSION WITH HIS FATHER (SEE VETERAN'S CLAIM FILE WITH CONSULTATION NOTE FROM DR. ANGEL ROSARIO AT UNIVERSITY COMMUNITY HOSPITAL DATED 6-11-01: 'FAMILY HISTORY SIGNIFICANT FOR HIS FATHER HAVING HYPERTENSION[;]' [and]
3. WEIGHT ELEVATION.
THUS, FOR ALL THESE REASONS LISTED ABOVE, IT IS <50% LIKELY THAT THIS VETERAN'S HYPERTENSION OR HYPERTENSION VASCULAR DISEASE WAS INCURRED IN OR THE RESULT OF ACTIVE DUTY MILITARY SERVICE, INCLUDING THE 1984 B.P. READINGS.
In support of its conclusion that the Veteran's hypertension/hypertensive vascular disease did not became manifest within one year of his discharge from active duty, the examiner reasoned as follows:
ACCORDING TO THIS VETERAN ORIGINAL CLAIM FILED 8-17-2004, VETERAN STATES THAT THE HYPERTENSION BEGAN ON 1-1-1981 AND HE ALSO STATES HE WAS TREATED FROM 1-1-1981 UNTIL 8-1-2004 (MONTH OF CLAIM).
THIS DOES NOT APPEAR ACCURATE, SINCE THE MILITARY RECORD CONTAINS THE FOLLOWING MEDICAL STATEMENTS:
1. A MILITARY RECORD DOCUMENT DATED 6 DECEMBER 1983 SHOWS THAT THE VETERAN CIRCLED THAT HE NEVER HAD OR WAS TREATED FOR HYPERTENSION [and].
2. AN ADDITIONAL DOCUMENT IN THE MEDICAL MILITARY RECORD DATE 26 OCTOBER 1984 SHOWS THE VETERAN ANSWERED 'NO' TO THE FOLLOWING QUESTION: 'HIGH BLOOD PRESSURE?'
ACCORDING TO A LETTER OF CLAIMS DENIAL DATED 4-8-05, A DOCUMENT THAT THIS VETERAN SUBMITTED ENTITLED 'HEALTH CARE PROVIDER CERTIFICATION' CERTIFIES THAT THE VETERAN STATED HIS HYPERTENSION COMMENCED IN 1990.
THIS VETERAN LEFT ACTIVE DUTY IN JUNE, 1985, AND HE WAIVED HIS SEPARATION EXAMINATION AT THAT TIME.
THERE ARE NO BLOOD PRESSURE READINGS THAT ARE DOCUMENTED IN THE CLAIMS FILES FOR THE 1 YEAR PERIOD AFTER LEAVING ACTIVE DUTY (JUNE, 1985 - JUNE, 1986).
THUS, THERE IS NO EVIDENCE TO SUPPORT A CLAIM THAT THE HYPERTENSION BECAME MANIFEST WITHIN 1 YEAR OF LEAVING ACTIVE DUTY.
THUS, IT IS <50% LIKELY THAT THIS VETERAN'S HYPERTENSION OR HYPERTENSIVE VASCULAR DISEASE BECAME MANIFEST WITHIN 1 YEAR OF LEAVING ACTIVE DUTY IN JUNE, 1985.
As to Dr. Bash's findings, conclusions, and rationale, the December 2013 VA examiner opined as follows:
DR. BASH DOES NOT LIST THE MOST ACCEPTED SOURCE FOR HYPERTENSION ISSUES: THE JOINT NATIONAL COMMISSION -7. DR. BASH IS ALSO PRIMARILY PRACTICING IN RADIOLOGY, NOT A PRIMARY CARE SPECIALTY, WHICH DEALS WITH DIAGNOSIS OF HYPERTENSION ON A REGULAR BASIS. HE IS THUS NOT THE BEST EXPERT TO PROVIDE AN OPINION ON THIS DIAGNOSIS.
IN RESPONSE TO DR. BASH'S OPINION, HE DID NOT QUOTE THE CORRECT CIRCUMSTANCES FOR THE DIAGNOSIS OF HYPERTENSION:
1. FROM UP-TO-DATE: 'A PATIENT SHOULD NOT BE LABELED AS HAVING HYPERTENSION UNLESS THE B.P. IS PERSISTENTLY ELEVATED AFTER 3-6 VISITS OVER A SEVERAL MOS. PERIOD.'
2. ACCORDING TO 'UP-TO-DATE' MEDICAL SOURCE REGARDING THE ACCEPTABLE WAY TO MEASURE B.P. IN A SUSPECT FOR DIAGNOSIS OF HYPERTENSION IS AS FOLLOWS 'THESE DEFINITIONS APPLY TO ADULTS ON NO ANTIHYPERTENSIVE MEDICATIONS AND WHO ARE NOT ACUTELY ILL.'
THIS VETERAN WAS SEEN IN THE EMERGENCY ROOM FOR BOTH OF THE ELEVATED B.P. READINGS. THE READING OF MAY 12, 1[9]84 WAS FOR A "PUNCTURED LEFT HAND," AND THE READING OF 12-5-1984 WAS FOR A "PUNCTURE WOUND LEFT PALM."
THUS, BOTH THESE BLOOD PRESSURE READINGS WOULD NOT QUALIFY IN ANY FORMAL DIAGNOSIS OF HYPERTENSION, SINCE A NORMAL PERSON MAY HAVE ELEVATION IN BLOOD PRESSURE DURING AN ACUTE INJURY OR ILLNESS.
ALL THE OTHER ACTIVE DUTY B.P. READINGS WERE NOT >140/90.
ADDITIONALLY, THIS VETERAN'S MEDICAL RECORDS FROM PRIVATE PHYSICIAN DR. EDWARD BRAUN DATE 12-21-2004 SHOW HE DID EXTENSIVE TESTING FOR A RENAL ETIOLOGY (CAPTOPRIL RENAL SCAN) AND OTHERS (24 HOUR URINE METANEPHRINES). THUS, AT THAT TIME, THERE WAS NO EVIDENCE THAT RENAL DISEASE WAS CAUSING THE HYPERTENSION. DR. BRAUN'S RECORDS LIST HIS DIAGNOSIS AS "ESSENTIAL HYPERTENSION" WHICH IS THE MOST COMMON DIAGNOSIS FOR HYPERTENSION.
DR. BASH FAILS TO NOTE THE RISK FACTORS THAT THIS VETERAN HAD FOR ESSENTIAL HYPERTENSION, WHICH IS THE MOST COMMON CAUSE OF THIS DISEASE:
1. BLACK RACE[,]
2. FAMILY HISTORY[, and]
3. WEIGHT ELEVATION.
THUS, DR. BASH'S STATEMENT AS FOLLOWS CANNOT BE SUPPORTED BY FACTUAL DATA:
'It is my opinion that this patient had HTN while in service and I officially give him that diagnosis now as it is apparent from the above record that this patient had hypertension (diastolic and systolic) while in the service....'
THE ABOVE OPINION IS WRONG, SINCE BLOOD PRESSURE READING WERE CONSIDERED FOR DIAGNOSIS, WHICH SHOULD, IN FACT, NEVER HAD BEEN CONSIDERED FOR THE DIAGNOSIS.
Furthermore, in the May 2016 VHA, the doctor after a review of the record on appeal, including the September 10, 1985, treatment record from the Bronx VA Medical Center that reported the Veteran's blood pressure was 170/90, and the Joint National Committee on Prevention and Treatment of High Blood Pressure opined that the Veteran's hypertension is not related to or had its onset in service nor did it manifest itself in the first post-service year. Specifically, the examiner reasoned as follows:
. . . #1 medical record from 9/5/1985 from the Bronx VA hospital where veteran was hospitalized due to complaints of left arm and hand weakness. He had received a stab wound and laceration to the left upper extremity 11 days prior to this. Past medical history at that time clearly notes no medical problems and he was noted to be on no medications at that time. Other records from September 1985 related to this accident and injury were reviewed. They did not reveal any diagnosis of hypertension nor had veteran been on any medications that would indicate that he had been diagnosed with hypertension at that time. A pre-op note from 9/9/1985 notes BP of 110/60 mm hg and also reports that EKG was normal sinus rhythm, chest x-ray was done which was normal as was the CBC electrolytes and urinalysis. Hs blood pressure at the time of admission during another nursing assessment was noted to be 120/60 mm hg. Normal blood pressure was also noted and other pre-op medical records from September 1985. The only medical records that show elevations in blood pressure are in the immediate postoperative phase and there are 2 records from May 12, 1984 and December 5, 1984 that document blood pressures of 142/98 and 140/90 respectively. At the time of the veterans discharge from the Bronx VA after repair of posterior interosseous nerve laceration were noted to be within normal limits and patient did not require medications for high blood pressure in September 1985.
Nutrition screen and assessment from September 5th, 1985 noted blood pressure to be normal. Veteran was noted to be of normal weight which was recorded at 140 pounds.
While there are some other notes from the Bronx VA with elevated blood pressures these are secondary to pain related to the injury to the left upper extremity. The specific clinical record from the Bronx VA cited in the appeal stating that the patient's blood pressure was noted to be 170/90 was during the postoperative period during which patient had received a dose of Narcan both IV and I M and had only recently been extubated. It is of note that his heart rate at that time was 120/m and a respiratory rate of 28 per minute. These are indicative of a period of stress and not timeframe where baseline blood pressure measurement could be taken at face value as an indication of and elevated blood pressure diagnostic of hypertension. The time that the blood pressure 170/90 was recorded is more representative of a stress periods such as the post-operative phase that he wasn't during which he received a dose of Narcan, was extubated and likely had other stressors such as dehydration and for pain. Patient was noted to be in rapid sinus rhythm on EKG monitoring during that time. This seems to have resolved and thereafter medical . . . records during the remainder of that hospitalization indicate normal blood pressures in the range of 110/60 with pulse rate in the 60s and 70s in normal sinus rhythm on EKG monitoring. The anesthetic records also indicate the same in (blood pressures of 110/80 pulse rate of 72/m and EKG recording showing normal sinus rhythm). The admission at the Bronx VA was repair of left posterior interosseous nerve status post laceration. He was discharged home on 9/13/1985 with a follow-up appointment on 9/25/1985. No diagnosis of hypertension was provided nor did he require treatment with antihypertensive medications.
Review of for blood pressure recorded during veteran's time in military service between 1978 and 1985 were reviewed and found to be nondiagnostic of hypertension except for a few readings in the perioperative phase during which the elevation would not be diagnostic of hypertension but is more due to other stressors leading to elevated blood pressures. The elevation of blood pressure resolved from our post op and veteran did not need to go on blood pressure medications until the 1990s. This would indicate that diagnosis of hypertension is not incurred in nor is it related to the vet's time in military service nor aggravated by veteran's time in military service.
The previous compensation and pension examination reports for this condition (hypertension), have been reviewed including a comp and pen hypertension DBQ completed by P.A. S[] and an appeal [o]pinion completed by Dr. S[].
Patient did not require treatment with medications for it and was noted to have normal blood pressures at the time of discharge and completion of treatment of the left upper extremity injury at the Bronx VA.
Given the veterans medical history which includes a diagnosis of hypertension the following questions need to be answered:
#1 is it at least as likely as not that the veteran's hypertension is related to or had its onset in-service?
#1 Response: It is less likely as not that the veteran's hypertension is related to his time in military service. Veteran's hypertension has not had its onset and was not incurred in nor aggravated by veteran's time in military service. Noted from medical records between 1978 in 1985 that veteran had normal blood pressures during his time in the military except during the perioperative phase in 1985 at the time of repair of posterior interosseous nerve laceration. After completion of the surgery and at the time of his discharge patient was noted to have no requirement for blood pressure medications indicating no diagnosis of hypertension was made at that time. Patient continued on without the need for blood pressure medications until the 1990s. There is no evidence to suggest that hypertension was diagnosed during his time in the military.
#2: Is it at least as likely as not that the veteran's hypertension manifested itself to a compensable degree in the first post service year?
#2 Response: It is less likely as not that the veteran's hypertension manifested itself to compensable degree in the first post service year. Veteran did not get diagnosed with hypertension nor was he initiated on medications in the first post service year. There are no records to support the diagnosis of hypertension nor is the elevation of blood pressure to the extent that it would meet criteria for diagnosis of hypertension in the first year post-military service. There are no blood pressure readings that are documented in the records for the year. After leaving active-duty between June 1985 in June 1986, there is no evidence to support a diagnosis of hypertension within 1 year of keeping active service. Hence it is less likely than not that the veterans hypertension was diagnosed with in 1 year of leaving active military service
According to the seventh report of the Joint National Committee on Prevention and Treatment of High Blood Pressure (JNC 7 report), hypertension is diagnosed when blood pressure readings are greater than 140 systolic and or greater than 90 diastolic. However these have to be in the setting of average level of functioning for the patient, with an average of 2 or more properly measured seated blood pressure readings on each of 2 or more office visits. This patient does not meet criteria for diagnosis of hypertension based on the JNC guidelines.
#3 is it at least as likely as not that the veterans hypertension continued since service?
#3 Response: Diagnosis of hypertension was not provided until much after breakfast time in military service. Hence it is less likely than not that the veterans, hypertension continued since military service. Once again after in depth review of all records in the DBM and all Military treatment records it is clear that veteran was diagnosed with hypertension after his time in military service and not during his time in military service. Hypertension is not incurred in military service in this case nor is it aggravated by veteran's military service in this case.
Lastly, in the June 2016 VHA, the doctor after a review of the record on appeal including Dr. Bash's opinions as well as Joint National Committee published in 2003 (JNC-7) and published in 2014 (JNC-8), opined that the Veteran's hypertension is not related to or had its onset in service nor did it manifest itself in the first post-service year. Specifically, the examiner reasoned as follows:
As a board certified Internal Medicine Physician who practices in the outpatient arena, frequently diagnosing and managing patients with hypertension, I feel qualified to render an opinion in this matter. In order to inform this opinion, an in-depth review of all records in the Veterans Benefit Management System was conducted.
The Appellant served in the military from 10/03/78 - 04/06/85. At the time of separation from the military, he declined a separation examination. Subsequently, a diagnosis of Essential Hypertension was made and the timing of this diagnosis related to separation from military service is in question. To date, four opinions have been rendered on this, matter, most recently by [a VA examiner] on12/2/13 and previously by [a VA examiner] on 9/28/10, Dr. Craig Bash on 10/28/09 and Dr. Karen Weber on 6/22109.
The generally accepted criteria for diagnosis of hypertension derive from the seventh report of the Joint National Committee (JNC-7) published in 2003. A more recent update of this report (JNC-8, 2014) included updated information on treatment thresholds and strategies but makes no[] change in diagnostic thresholds. According to these criteria, hypertension is diagnosed when the average of 2 or more properly collected blood pressures AFTER the initial screening reading equals or exceeds 140/90mm Hg. These 2 readings must be collected on 2 separate encounters. Proper collection involves having the patient seated for 5 minutes, arm supported at heart level, no caffeine or exogenous stimulants within the last hour and with the right sized blood pressure cuff. No acute symptoms should be present. . . .
From detailed chart review, all available data on appellant's blood pressure was extracted and is presented in chart form [below]. All blood pressures obtained before 1984 were normal. One blood pressure obtained in 1984 was marginally elevated, however, this was in the setting of an acute injury and would not have qualified the patient for a diagnosis of hypertension. Likewise, in 1985, four mildly elevated (i.e. within 10 points of goal) were obtained, all in the acute symptomatic setting. During that same year, 9 normal range readings were obtained. More readings were normal than not. Thus, in 1985, the patient would not have qualified for the diagnosis of hypertension nor would he have been candidate for treatment based on current guidelines. In 1986, only one reading was taken and it was normal. During 1987-1988, the appellant's blood pressure fluctuated in and out of range though again, all readings were obtained in the acute setting. By 1994, consistently markedly elevated readings were obtained in the acute setting. These readings were so elevated that one might hypothesized that had blood pressure been checked when the patient was symptoms free, they would still be above target, but it is not possible to know that for certain.
Blood Pressure Data for the Appellant:
Based on review of data in the record there is no evidence of target end organ damage from hypertension. Such damage usually manifests as thickening of the wall of the heart (left ventricular hypertrophy), damage to the kidneys (with either protein spillage into the urine or kidney dysfunction), and damage to the retina. In general, it takes 20 or more years of uncontrolled hypertension to see these effects on the body. In 2009, the patients Primary Care Provider (PCP) Dr. Braun obtained an echocardiogram that was normal and showed no LVH. Several urine studies show no protein .spillage and kidney function remains normal. A captopril renal scan done on 6/3/02 was normal, making renal artery stenosis as the cause of the patient's hypertension very unlikely. Likewise, the Veteran was also checked for a Pheochromocytoma (another cause of premature hypertension) and found not to have one. These factors do not exclude the possibility that the appellant's hypertension began during his 20's when he was still in the military, they just make it less likely.
The natural history of essential hypertension is such that it becomes more prevalent as people age. It is not uncommon for a person to be normotensive in the first 3 decades of life then have hypertension manifest in the 4th and 5th decades. It is less common for young people to develop hypertension. Other demographic factors such as race play a role with much higher rates or hypertension in African Americans. In this group, hypertension can begin earlier in life and have more severe complications. . . . Data suggests that 10-15% of non-Hispanic black men develop hypertension in the 18-39year age range while 40% will develop hypertension in the 40-59 year range . . . Regardless, it is more likely that an African American man would develop hypertension in his late 30's or 40's than, it would be to develop hypertension before that time.
In response to the questions posed:
a) Is it at least as likely as not that the Veteran's hypertension is related to or had its onset in the service?
No, the appellant did not meet criteria for the diagnosis of hypertension before 04/06/85. There [are] sufficient numbers of normal blood pressure readings obtained up until that date taken in acute and non-acute situations that would preclude a diagnosis of hypertension. Many individuals who do not have hypertension would manifest elevated blood pressures in the setting of acute puncture wounds and painful damaged nerves.
b) Is it at least as likely as not that the Veteran's hypertension manifested itself to a compensable degree in the first post-service year?
No, there is no data to support this claim. The one reading obtained in1986 was normal. A borderline reading was obtained in 1987 following an acute injury and a normal reading in 1988. The elevations in blood pressure readings seen were minimal and not consistent enough to establish a trend.
c) Is it at least as likely as not that the Veteran's hypertension continued since the service.
No. Data supports onset of hypertension in the mid. 1990's with steady progression since that time. This would be a much more common stage of life for this condition to manifest. Blood pressure readings during acute visits in 1994 and 1995 were so high they should have prompted further investigation to clarify official diagnosis of hypertension. Persistent blood pressure elevations noted from 1995 onward suggests steady progression since that time.
The above opinions are compatible with options rendered previously by [the VA examiners]. They differ from those rendered by Dr. Bash. As to the reason for this discrepancy I offer the following possibilities:
1) As an Internist, I am involved with diagnosing and treating patients with hypertension daily. I have been trained in evidence based techniques and adhere to the guidelines for diagnosing and managing hypertension as recommended byJNC-7 and 8. There are risks associated with premature diagnosis and treatment of this condition and thus rigor is needed in diagnosis. This also allows for common sense diagnosis when large BP elevations are seen across multiple settings. This differs from Dr. Bash's background as a radiologist who does not diagnose or treat hypertension.
2) I have searched the chart for evidence that the patient may have a secondary cause for hypertension such as renal artery stenosis and pheochromoctyoma that might lead to early onset hypertension. These conditions have been checked for and are not present. Dr. Bash mentions a renal cause of hypertension which to date has not been substantiated.
3) I have been more systematic in documenting each blood pressure obtained before 1987 and cataloguing whether each reading is associated with acute symptoms or not. This makes it possible to look for patterns in the data.
Initially, the Board finds that the above VHA opinions do not suffer from the same problem the May 2015 JMR found with the December 2013 VA examiner's opinion. Specifically, they both specifically discuss the significance, if any, of the September 10, 1985, treatment record that reported the Veteran's blood pressure was 170/90. See Owens. In this regard, the May 2016 VHA included the following opinions:
. . . While there are some other notes from the Bronx VA with elevated blood pressures these are secondary to pain related to the injury to the left upper extremity. The specific clinical record from the Bronx VA cited in the appeal stating that the patient's blood pressure was noted to be 170/90 [i.e., the September 10, 1985, treatment record] was during the postoperative period during which patient had received a dose of Narcan both IV and I M and had only recently been extubated. It is of note that his heart rate at that time was 120/m and a respiratory rate of 28 per minute. These are indicative of a period of stress and not timeframe where baseline blood pressure measurement could be taken at face value as an indication of and elevated blood pressure diagnostic of hypertension. The time that the blood pressure 170/90 was recorded is more representative of a stress periods such as the post-operative phase that he wasn't during which he received a dose of Narcan, was extubated and likely had other stressors such as dehydration and for pain . . .
. . . Review of for blood pressure recorded during veteran's time in military service between 1978 and 1985 were reviewed and found to be nondiagnostic of hypertension except for a few readings in the perioperative phase during which the elevation would not be diagnostic of hypertension but is more due to other stressors leading to elevated blood pressures . . . The elevation of blood pressure resolved from our post op and veteran did not need to go on blood pressure medications until the 1990s. This would indicate that diagnosis of hypertension is not incurred in nor is it related to the vet's time in military service nor aggravated by veteran's time in military service.
Similarly, the June 2016 VHA included the following opinions:
. . . Likewise, in 1985, four mildly elevated (i.e. within 10 points of goal) were obtained, all in the acute symptomatic setting. During that same year, 9 normal range readings were obtained. More readings were normal than not. Thus, in 1985, the patient would not have qualified for the diagnosis of hypertension nor would he have been candidate for treatment based on current guidelines . . . .
The elevations in blood pressure readings seen were minimal and not consistent enough to establish a trend . . .
Next the Board notes that, while the cumulative VA and private medical treatment records reflect long-standing treatment for hypertension, the only evidence specifically pertaining to the question of causal nexus are the competing opinions provided by the VA examiners/VHAs and Dr. Bash. In this regard, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.
After careful consideration, the Board finds the VHA opinions that the Veteran's current hypertension was not diagnosed in-service, was not diagnosed in the first post-service year, and was not etiologically related to military service to be both competent and the most persuasive on the question of nexus as they reflect a comprehensive analysis of the pertinent evidence and are otherwise supported by the evidence of record as well as citation to controlling medical authority. Id; Also see Owens.
On the other hand, the Board finds Dr. Bash's opinions to be less persuasive as they fail to address, as did the VHA opinions, the fact that the only elevated blood pressure readings in service and within one year of discharge were noted only in connection with incidents of acute trauma which caused a temporary spike in his blood pressure but which spike is insufficient to form the bases of a diagnosis of hypertension. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The Board also finds Dr. Bash's opinions to be less persuasive than the June 2016 VHA because, as pointed out in the June 2016 VHA, as an internist the VHA provider has greater experience than a radiologist in diagnosing hypertension. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The Board also finds Dr. Bash's opinions to be less persuasive because, as pointed out by the December 2013 VA examiner, none of his opinions took into account the Veteran's three risk factors for hypertension. See Black; Reonal. Likewise, the Board finds Dr. Bash's opinions to be less persuasive then the June 2016 VHA opinion because that VHA considered alternative causes for the appellant's hypertension instead of concluding that the appellant's service could be the only cause. Id. The Board also finds Dr. Bash's opinions less persuasive because, notwithstanding Dr. Bash's claims to the contrary that the Veteran's record does not support another etiology for his hypertension but his active duty service, the record shows three other possible etiology (i.e., his race, his family history, and his elevated weight). Id. Further, the Board finds Dr. Bash's first two opinions to be less persuasive because, as pointed out by the December 2013 VA examiner, they relied on the wrong medical standard. Id. Lastly, the Board finds that Dr. Bash's first two opinions internally inconsistent. In this regard, Dr. Bash pointed to two elevated blood pressure readings taken on the same day in May 1984 to show that hypertension existed in service; however, he also noted that a person is not diagnosed with hypertension unless their blood pressure is persistently high at two office visits at least one week apart, because many people are anxious when seeing a doctor or nurse. Thus, by Dr. Bash's own explanation, the Veteran's two isolated elevated blood pressure readings noted in May 1984 would not in fact support a diagnosis of hypertension. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence).
As to the lay claims from the Veteran and others that the appellant hypertension was caused by his military service, the Board finds the above VA opinions more credible than these lay claims because healthcare professionals have more expertise. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Moreover, the Board finds that diagnosing hypertension requires special medical training that these lay persons do not have and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation. See Davidson. Accordingly, since laypersons are not capable of opining on matters requiring medical knowledge the Board finds that their opinions, including the Veteran's opinions in the September 2016 reply to the VHAs that his hypertension was caused by service (i.e., that blood pressure readings in 1985 ". . . must be considered prehypertension and hypertension . . ." and ". . . since all but five of my blood pressure readings taken during the service were prehypertension and hypertension and according the JNC-8 prehypertension led to hypertension the facts speak for themselves" . . .) is not competent evidence. Jandreau.
As to the medical treatise evidence filed by the Veteran, the Board finds that such generic information is too general and inconclusive to establish a plausible claim that the Veteran's hypertension was incurred in or aggravated by service. See Mattern v. West, 12 Vet. App. 222 (1999) ("Generally, an attempt to establish a medical nexus . . . solely by generic information in a medical journal or treatise 'is too general and inconclusive' to well ground a claim."). See also Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998).
Therefore, the Board finds that the most probative evidence of record shows that the Veteran's current hypertension was not caused by his military service. Accordingly, the Board finds that entitlement to service connection for hypertension is not warranted based on the initial documentation of the disability after service because the weight of the probative evidence is against finding a causal association or link between the post-service disorder and an established injury, disease, or event of service origin. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d).
Accordingly, the Board concludes that entitlement to service connection for hypertension must be denied because the weight of the evidence is against the claim. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
ORDER
Service connection for hypertension is denied.
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STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs