Citation Nr: 0725139 Decision Date: 08/13/07 Archive Date: 08/20/07 DOCKET NO. 04-24 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for residuals of a stroke with hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The veteran served on active duty from September 1974 to April 1991. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (RO), which denied service connection for residuals of a stroke. In its decision, the RO indicated that the first finding of hypertensive heart disease was too remote from service, and that residuals of stroke with hypertension were not related thereto. The Board remanded the case to the RO for further development in January 2006. Development has been completed and the case is once again before the Board for review. FINDING OF FACT Residuals of a stroke with hypertension are not shown to be etiologically related to active service. CONCLUSION OF LAW Residuals of a stroke with hypertension were not incurred in or aggravated by active service, nor may hypertension be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that VA has met all statutory and regulatory VCAA notice and duty to assist requirements. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a November 2002 letter, VA informed the veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the veteran was responsible. VA also asked the veteran to provide any evidence that pertains to his claim. The VCAA notice requirements apply to all five elements of a service connection claim, including the degree of disability and the effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, VA did not provide the veteran with VCAA notice of the type of specific evidence necessary to establish a disability rating or effective date prior to the initial rating decision. However, as the Board concludes below that the preponderance of the evidence is against the veteran's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). There is no indication that any notice deficiency reasonably affects the outcome of this case. Thus, the Board finds that any failure is harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). VA and private treatment records, a VA examination, and various lay statements have been associated with the claims file. VA has provided the veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. Pursuant to a January 2006 remand, the RO made additional attempts to locate and obtain the veteran's service medical records which are not currently on file. The RO also made additional attempts to locate service medical records associated with identified periods of service in Germany and Korea. A March 2006 correspondence shows that the National Personnel Records Center (NPRC) had conducted an extensive and through search, but were unable to locate the veteran's records. The NPRC concluded that the records either do not exist, that the NPRC did not have them, or that further efforts to locate them at the NPRC would be futile. The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The veteran identified and submitted additional medical records for treatment from 1999 to 2006; these records have been associated with the claims file. The veteran has not identified any periods of post- service treatment prior to October 1999. The record is complete and the case is ready for review. B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2006). In addition, certain chronic diseases, including hypertension, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.307, 3.309 (2006). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111 (West 2002). Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained- of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The term "noted" denotes only such conditions recorded in examination reports. 38 C.F.R. § 3.304(b) (2006). A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such condition at entrance. Id. The veteran's service medical records are not available for review in this case. A December 1999 treatment report from Tacoma General Hospital indicates that the veteran was diagnosed at age 18 with hypertension. The Board finds, however, that this note which appears to be based on a history as reported by the veteran is not enough to rebut the presumption of soundness. Absent clear and unmistakable medical evidence of injury or disease prior to service, the Board will presume that the veteran entered service in sound condition. See 38 U.S.C.A. §§ 1111 (West 2002); 38 C.F.R. § 3.304(b) (2006). The veteran contends, in January 2002 and October 2002 statements, that he was evaluated but not treated for high blood pressure during active duty. He asserts that hypertension diagnosed in service ultimately caused a stroke. Medical evidence of record shows that the veteran had a stroke in October 1999, eight years after service and the veteran has been assessed with a history of longstanding hypertension. VA and private treatment records show continued treatment for residuals of the October 1999 cardiovascular accident as well as for hypertension. A December 1999 treatment report from Tacoma General Hospital shows that the veteran was working as a jazz pianist on tour in Japan in October 1999 when he had a cerebral infraction. The veteran was assessed at the International Medical Center of Japan in Tokyo and was diagnosed to have a cerebral infarction in the left internal capsular area and left occipital area. During the presentation, he was hemiplegic on the right side with hemi-anesthesia. A workup revealed rather severely dilated cardiomyopathy. His dilated cardiomyopathy was attributed to longstanding hypertension, with which he was diagnosed at age 18, but he never received any treatment. A subsequent December 1999 report also noted a history of hypertension with noncompliance to medication. A February 2000 treatment report from the Franciscan Health System shows that the veteran had an admitting diagnosis of cerebrovascular accident, with right hemiplegia, and a history of chronic hypertensive heart disease. The report noted that the veteran was diagnosed at age 45 with a cerebrovascular accident in October 1999 while touring Japan as a jazz pianist. His workup in Japan included an echocardiogram of the heart which showed dilated cardiomyopathy with an intracardiac thrombus in both left ventricular and left arterial locations. The veteran was also diagnosed with chronic hypertension. VA and private treatment records reflect continuing treatment for hypertension and for residuals of a cerebrovascular accident with right side hemiparesis in 1999. (See VA treatment records, November 2001 to October 2002 and February 2004 to February 2006; Treatment Reports from Dr. R.E.W., September 2000 to July 2002; Cushing Memorial Hospital Records, January 2001 to April 2001.) A July 2003 treatment report from Dr. R.E.W. notes that the veteran was discharged from the military after suffering a stroke in October 1999. The evidence of record, however, indicates that the veteran was discharged in April 1991, approximately eight years prior to his stroke. In a November 2006 VA examination, the veteran reported that he was found to have hypertension 22 years prior, when he was in service. No treatment was received. He had a stroke in 1999 and had right hemiplegia. The examiner stated that it is well known that hypertension will cause stroke and myocardia infarct and other target organ damage. Therefore, the examiner opined that the veteran's cerebrovascular accident with residual right hemiparesis was due to longstanding hypertension. In a November 2006 addendum, the examiner stated that he reviewed the claims file and electronic notes again. He stated that according to the veteran's old chart, he had longstanding hypertension, which was diagnosed at age 18. This was prior to the veteran's entrance into military service. The veteran reported that he never received treatment even in service. He developed a cerebrovascular accident with right hemiplegia in October 1999 most likely due to severe dilated cardiomyopathy with left ventricle and left atrial thrombus. The VA examiner again opined that the veteran's ischemic cerebrovascular accident was due to a longstanding, not well-controlled arterial hypertension. However, the examiner did not specifically opine that that hypertension and subsequent stroke were related to the veteran's military service. The examiner stated that according to the veteran's history he was found to have severe dilated cardiomyopathy and left ventricle and left atrial thrombus by echocardiogram when he developed ischemic emboli which came from left ventricle and left atrial embolus. He stated that the dilated cardiomyopathy may result from systemic arterial hypertension, arthrosclerosis, diabetes mellitus, substance abuse, cardiotoxin exposure, valvular heart disease and malnutrition. In the absence of coronary artery disease, diabetes mellitus, alcohol or cocaine abuse, and valvular heart disease, the cause of dilated cardiomyopathy for the veteran was a longstanding, not well-controlled arterial hypertension. The December 1999 treatment report from Tacoma General Hospital and the November 2006 VA examination show that the veteran's stroke was due to longstanding hypertension. Hypertension, however, is not shown by medical evidence of record to have been incurred in service or within a year of separation from service. VA and private treatment records show that the veteran had a longstanding history of hypertension. It is unclear, however, if hypertension was incurred in service or within a year of separation of service. There are no medical records available which reflect a diagnosis or treatment for hypertension until 1999. The record contains no nexus linking the veteran's current hypertension to service. Thus, the Board finds that service connection for residuals of a stroke with hypertension is not warranted. The Board has considered the veteran's own statements and other lay statements in support of his claims. In 2007 lay statements, the veteran's mother, sister, and cousin submitted statements that recalled that the veteran told them he had high blood pressure in service. The cousin stated that in October 1976, the veteran told him that he thought his headaches were due to high blood pressure. The veteran's mother stated that she visited her son in February 1980 and that he told her that he had been diagnosed with high blood pressure. The veteran's sister stated that she visited him in 1978 and always checked with him after her mother told her that the veteran had been diagnosed with high blood pressure. All three also essentially stated that they were concerned and/or wondered why the military told him that diet and exercise would be enough to control the high blood pressure. The Board is mindful that, in a case such as this, where service medical records are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not, however, 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 appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the U.S. Court of Appeals for Veterans Claims (Court) declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). The veteran and his mother, sister, and cousin can attest to factual matters of which they had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran and the other individuals as lay persons have not been shown to be capable of making medical conclusions, thus, their statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, No. 2007-7029, 2007 WL 1892301 (Fed. Cir. July 3, 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr v. Nicholson, No. 04-0534, 2007 WL 1745833 (U.S. Vet. App. June 15, 2007). The veteran has attempted to satisfy the requirement of evidence of disease or injury in service through the above- described lay statements which recall that at various times in service, the veteran told them he had been diagnosed with high blood pressure. However, the Board finds that while such individuals are competent to report what they recall, they are not competent to identify the medical condition purportedly diagnosed in service and have no firsthand knowledge of the incidents reported to have occurred in service. While such individuals are competent to state what they remember, the Board finds that such statements are accorded little probative weight in this case in light of other evidence of record. In this regard, the Board notes that the veteran's representative reported in a December 2005 written brief presentation that the veteran was seen between 1988 and 1990 complaining of headaches and hypertension was discovered; he recalled his blood pressure was 180/110 at the time. He also reportedly stated that he was seen from 1975 to 1976 in service. On VA examination, he reported that he was diagnosed at age 22 in service. However, the Board notes that the December 1999 private treatment records show a reported history of hypertension since age 18, and a history indicating that the veteran either never had treatment for hypertension until the stroke, or that he was noncompliant with medication for hypertension indicating that he had received some treatment but was not taking the prescribed medication. The Board notes further, that while service medical records are apparently unavailable, the veteran has provided no medical evidence of high blood pressure and any documentation of elevated blood pressure in the eight years between his discharge in 1991 and his stroke in 1999. The Board finds it likely that if the veteran was diagnosed with high blood pressure in service which he contends continuously existed since the early to mid-1970s until his stroke in 1999 which went untreated in service and thereafter, there would be some medical evidence even for treatment of disabilities unrelated to hypertension, that would document elevated blood pressure readings or a history of hypertension in the eight intervening years. As such, the Board has accorded little weight to the lay statements in this case. Although the veteran may have been evaluated for high blood pressure in service, there is no diagnosis or treatment for hypertension shown until many years after service. With regard to this evidentiary gap between active service and the earliest post-service findings of hypertension, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury or experienced an event in service which resulted in chronic disability or persistent symptoms of high blood pressure thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any evidence of continuing complaints, symptoms, or findings for the years between the period of active duty and the first evidence of hypertension is itself evidence which tends to show that hypertension did not have its onset in service or within one year of service discharge. Where the determinative issue is one of medical causation or diagnosis only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). See also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). While the VA examiner indicated that the veteran's hypertension was longstanding, he did not specifically indicate that it was incurred in service. To the extent that his statement could be read as relating the veteran's hypertension to service, the Board notes that it was clearly based on the veteran's reported history of the onset of hypertension in service. Notably, however, his addendum indicates that a review of the record actually showed that the veteran in treatment records had reported the initial diagnosis to have occurred at age 18. There is, essentially, no medical evidence relating the veteran's residuals of stroke with hypertension to the veteran's military service. C. Conclusion Although the veteran has residuals of a stroke with hypertension, the record provides no competent medical evidence which shows that that the disability was incurred in or aggravated in service. Hypertension did not manifest to a compensable degree within a year following the veteran's separation from service, and no nexus has been established between the veteran's current disability and his military service. Therefore, the Board concludes the preponderance of the evidence is against finding that the veteran has residuals of a stroke with hypertension etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the veteran's claim. ORDER Service connection for residuals of a stroke with hypertension is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs