Citation Nr: 0718663 Decision Date: 06/21/07 Archive Date: 07/03/07 DOCKET NO. 05-35 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for radiation poisoning due to exposure to ionizing radiation. 3. Entitlement to service connection for a carcinoma. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from June 1961 to July 1965. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2006. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. Hypertension was not manifested in service or in the first postservice year, and is not shown to be related to the veteran's service, to include alleged exposure to ionizing radiation therein. 2. The medical evidence of record does not show the veteran has radiation poisoning. 3. The medical evidence of record does not show the veteran has a carcinoma. CONCLUSIONS OF LAW 1. Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). 2. Service connection for radiation poisoning is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). 3. Service connection for a carcinoma is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini II that VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119-20 (2004). See, too, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the veteran was provided notice of the VCAA in June 2004, prior to the initial adjudication of his claims in the February 2005 rating decision at issue. The VCAA letter summarized the evidence needed to substantiate the claims and VA's duty to assist. It also specified the evidence the veteran was expected to provide, including the information needed to obtain both his private and VA medical treatment records. In this way, the VCAA letter clearly satisfied the first three "elements" of the notice requirement. In addition, the June 2004 letter stated: "If you have any evidence in your possession that pertains to your claim, please send it to us." This satisfies the fourth "element". During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include mention that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In this case, the veteran received Dingess notice in March 2006, including as it relates to the downstream disability rating and effective date elements of his claims. The Board finds that all relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes service medical records, VA medical records, and a private treatment record. There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained. In January 2006, the veteran stated that he had no further evidence to submit. The veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2006). The Board is aware that the veteran has not been afforded a VA examination in conjunction with his service connection claims. The VCAA and implementing regulations require VA to provide a veteran with an examination or to obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (a) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (b) establishes that the veteran suffered an event, injury or disease in service; and (c) indicates that the claimed disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4) (2006). Upon review, the Board has concluded that a remand for physical examination of the veteran and/or a medical nexus opinion is not warranted. As discussed in more detail below, the service medical records do not reflect any elevated blood pressure readings or a diagnosis of hypertension. In addition, there is no competent medical evidence of radiation poisoning and a carcinoma currently. In the absence of in- service incurrence of hypertension or competent medical evidence of current radiation poisoning and a carcinoma, referral for a medical nexus opinion and/or physical examination is not necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Regarding the hypertension claim, any medical opinion obtained would of necessity be based on the veteran's own statements as to what occurred during service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Obtaining a medical nexus opinion under the circumstances presented in this case would be a useless exercise. Regarding the radiation poisoning and carcinoma claims, physical examination of the veteran is unnecessary because, even best case scenario, there are no present disabilities to causally relate to his military service. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In so concluding, the Board finds that the circumstances here presented differ from those found in Charles v. Principi, 16 Vet. App. 370 (2002), wherein the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this particular case there is no objective evidence of any in-service hypertension or evidence of current radiation poisoning and carcinoma. The veteran has been provided the opportunity to present evidence pertaining to in-service incurrence and current disability, and he has not done so. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claims has been consistent with the provisions of the VCAA. Pertinent Law and Regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). Certain diseases, including hypertension, may be presumed incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). In addition, 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 order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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). Service connection presupposes a current diagnosis of the claimed disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Analysis Entitlement to service connection for hypertension. Hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension is defined as systolic blood pressure that is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. To support a diagnosis of hypertension the blood pressure readings must be taken two or more times on at least three different days. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 4.104, Diagnostic Code 7101(Note 1) (2006). With respect to Hickson element (1), current diagnosis, there are current diagnoses of hypertension. With respect to Hickson element (2), in-service incurrence, the service medical records do not disclose any complaints or clinical findings that were attributed to hypertension. The blood pressure readings noted in service do not reflect hypertension as defined by VA. At the time of separation examination in July 1965, blood pressure was 120/84. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 4.104, Diagnostic Code 7101(Note 1) (2006). The Board notes that during his August 2006 hearing the veteran, himself, admitted that he did not have hypertension while in the military. See hearing transcript [HT] at page 3. There is no relevant medical evidence for approximately 36 years after the veteran left service. There is no indication that hypertension was diagnosed within a year of his separation from service. The first record of treatment for hypertension is dated in August 2001. In short, there is no evidence showing that the hypertension, which was apparently initially documented in mid 2001, had its onset during service or during the one-year presumptive period following the veteran's separation from service. Accordingly, the Hickson element (2) has not been satisfied and the veteran's claim fails on that basis. With respect to element (3), medical nexus, no competent medical nexus exists. That is, no health care provider has attributed the veteran's hypertension to his military service. It is clear that in the absence of in-service evidence of hypertension a medical nexus opinion would be an impossibility. Cf. Charles v. Principi, 16 Vet. App. 370, 374 (2002). To the extent that the veteran himself is attempting to provide a nexus between his hypertension and his military service, his statements are not probative of a nexus between the condition and military service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (holding that lay persons are not competent to offer medical opinions); see also Voerth v. West, 13 Vet. App. 117, 119 (1999) (unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service). During his August 2006 hearing, the veteran alleged that his hypertension was the result of exposure to ionizing radiation while serving on a ship stationed off the coast of Florida - caused by the firing of "gamma ray missiles" HT at pages 2-4. A review of the veteran's DD 214 and service personnel records shows that his service did not involve "radiation- risk" activity as defined in 38 C.F.R. § 3.309(d)(3)(ii), and the veteran may not be deemed a "radiation-exposed veteran" as defined by 38 C.F.R. § 3.309(d)(3)(i). Furthermore, hypertension is not listed among those subject to presumptive service connection for a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(2), and it is not listed as a radiogenic disease under 38 C.F.R. § 3.311(b)(2). There is no (competent) evidence that such disease may be considered radiogenic in nature. Consequently, the presumptive provisions of 38 C.F.R. § 3.309(d)(2) and special development procedures of 38 C.F.R. § 3.311 do not apply. In summary, Hickson element (1) has been met; however, Hickson elements (2) and (3) have not. For the reasons and bases which have been expressed in detail above, the Board finds that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for hypertension. The benefit sought on appeal is accordingly denied. Entitlement to service connection for radiation poisoning due to exposure to ionizing radiation. Entitlement to service connection for a carcinoma. Because these claims are being resolved in the same manner, the Board will discuss them together. With respect to Hickson element (1), there is no evidence of radiation poisoning and a carcinoma shown currently. In fact, during the August 2006 hearing, the veteran essentially admitted that he did not have a current diagnosis of radiation poisoning. HT at page 5. The veteran has not submitted any medical records documenting the diagnosis of either condition. In the absence of a confirmed diagnosis of radiation poisoning and a carcinoma, meaning medical evidence showing the veteran has the conditions alleged, service connection is not warranted. The case law is well settled on this point. In order for a claimant to be granted service connection for a claimed disability, there must be evidence of a current disability. See Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection is limited to cases wherein the service incident has resulted in a disability, and in the absence of proof of a present disability, there can be no valid claim). See also Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992) (service connection claim must be accompanied by evidence establishing the claimant currently has the claimed disability). And as discussed above, the veteran is not competent to provide an opinion, himself, on medical matters such as diagnosis and etiology of diseases. See Espiritu. In short, Hickson element (1) has not been met. So service connection must be denied on this basis alone - irrespective of any other Hickson considerations. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for radiation poisoning due to exposure to ionizing radiation is denied. Entitlement to service connection for carcinoma is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs