Citation Nr: 0713978 Decision Date: 05/11/07 Archive Date: 05/25/07 DOCKET NO. 04-33 245 ) 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 Appellant and spouse ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran had active service from November 1952 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for hypertension. FINDINGS OF FACT 1. There is no competent evidence that the veteran's hypertension preexisted service. 2. The veteran's hypertension is not related to service, and did not first manifest during service or within a year of separating from service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, and may not be so presumed. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION In order to establish service connection, three elements must be established. 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. 38 C.F.R. § 3.303 (2006); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran will be 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, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v Brown, 7 Vet. App. 238 (1994). The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Gahman v. West, 13 Vet. App. 148, 150 (1999). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 109 (Fed. Cir. 2004). Factual Background The veteran seeks service connection for hypertension, which he contends preexisted service and was aggravated by active service. He states that he experienced headaches, blurred vision, heart palpitations, and hearing loss after combat missions. He believes the aforementioned symptoms were exacerbations of his preexisting hypertension. In support of his claim, he submits an August 2004 lay statement from his sister-in-law. She attests that she was aware of the veteran's personal and familial history of hypertension prior to active service. The veteran has also submitted an August 2004 lay statement from a life-long friend, who also related knowledge of the veteran's history of hypertension before entering active service. The veteran's December 1951 pre-induction examination indicates his vascular system was normal. His blood pressure was 148/78. A notation on the pre-enlistment examination indicates the veteran was hospitalized for hypertension in December 1951; however, diagnostic testing for hypertension was negative. The veteran did not complain of or seek treatment for symptoms of high blood pressure or hypertension during active service. His November 1954 separation examination reveals a normal vascular system. His blood pressure was 160/70. The veteran underwent a VA medical examination in March 1955. He did not complain of hypertension, and his blood pressure was 130/90. The veteran was hospitalized for an unrelated medical condition in July 1955. His blood pressure was 144/84. The medical evidence of record does not reflect a diagnosis of or treatment for hypertension within one year of separation from service. In January 2007, the veteran's claims folder was submitted to a VA cardiologist for an opinion regarding whether hypertension is related to service. After review of the claims file, including service medical records, VA medical records, and lay statements submitted by the veteran; the cardiologist explained that the veteran's blood pressure readings in service were considered to be normal variants. The cardiologist noted that the readings may have reflected stress-induced elevations. The cardiologist concluded that although the veteran's blood pressure readings were considered the upper limit of normal, there is no clear and unmistakable evidence that hypertension existed prior to active service. Further, the cardiologist concluded that there was no permanent worsening of the veteran's clinical status during his military service. Finally, the cardiologist concluded that the veteran's hypertension did not develop until more than one year after service. Analysis The veteran's blood pressure was measured and he was hospitalized to reach a definitive diagnosis of hypertension at induction into service. On examination, tests for hypertension were negative. Thus, service medical records do not reflect a diagnosis of hypertension at induction into service. Further, hypertension is not shown by clear and unmistakable evidence to have existed prior to service. Although the veteran has reported a history of hypertension throughout his lifetime; neither his lay statements nor the statements of his sister-in-law and friend are sufficient to rebut the presumption of soundness. In addition, a VA cardiologist concluded that there is no clear and unmistakable evidence that hypertension existed prior to service. Thus, the presumption of soundness at induction into service has not been rebutted. While the Board assumes that there is a current diagnosis of hypertension, the veteran has not submitted evidence of service incurrence. The veteran was in sound condition at induction into service and diagnostic tests performed to detect hypertension were negative. He did not complain of or seek treatment for hypertension during service. Hypertension was not noted at separation from service. The veteran's blood pressure at separation was within normal limits. The only competent medical opinion as to onset is the cardiologist's opinion that puts the onset of the veteran's hypertension after the one-year presumptive period of 38 C.F.R. § 3.309. The sincerity of the veteran's belief that his hypertension is related to service is not in question. However, a layperson is not competent to opine on matters requiring medical knowledge, such as whether his current condition is related to an incident or injury during service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The criteria for a grant of service connection have not been met. Further, hypertension was not diagnosed within the year after separating from service, thus, service incurrence may not be presumed. 38 C.F.R. § 3.309(a). The preponderance of evidence is against the claim, the "benefit of the doubt rule" does not apply, and the claim for service connection for hypertension must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49 (1990). Duty to Notify and Assist Duty to Notify: Regarding VA's duty to inform the veteran of the evidence needed to substantiate his claim, the RO notified him of the information and evidence needed to establish entitlement to service-connection in correspondence dated December 2003 by informing him of the evidence he was required to submit, including any evidence in his possession, and the evidence that the RO would obtain on his behalf. Because service connection has been denied, any question as to the appropriate effective date is moot, and there can be no failure-to-notify prejudice to the veteran. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist: Regarding the duty to assist the veteran in obtaining evidence in support of his claim, the RO obtained his service medical records, VA medical records, and obtained a VA medical opinion in January 2007. Although the veteran submitted a February 2004 Authorization and Consent for Records form, the veteran requested that VA obtain records not relevant to his claim for hypertension. Further, the veteran did not give sufficiently specific dates with which to search the records of the North Point VA medical center. The veteran was not afforded a VA examination in connection with the claim and the Board finds that such an examination is not necessary. The evidence of record does not reflect evidence of an incident or injury in service. The veteran has not indicated the existence of any other evidence that is relevant to this appeal. The Board concludes that all relevant data has been obtained for determining the merits of this claim and that no reasonable possibility exists that any further assistance would aid him in substantiating this claim. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs