HYPERTENSION

D. JOHNSON · 2017 · Case ID: 1727932

DENIED

Summary

The veteran, who served from November 1967 to October 1969, appeals the denial of service connection for hypertension and entitlement to special monthly compensation (SMC) for aid and attendance or housebound status. The Board found no evidence of hypertension during service or within one year of separation, and the veteran did not establish service connection on a direct basis. While the veteran claimed hypertension was secondary to his service-connected PTSD, migraines, seborrheic dermatitis, and erectile dysfunction, a VA examiner opined that it was less likely than not that hypertension was caused by or aggravated by these conditions or their medications, citing a lack of peer-reviewed literature. The Board found the veteran lacked the expertise to provide a competent medical opinion on etiology, relying instead on the VA examiner's opinion. The claim for SMC was denied as the evidence did not show the veteran required regular aid and attendance or was permanently housebound. While the veteran has PTSD rated as totally disabling, he lacks additional service-connected disabilities independently ratable at 60 percent or more, and his migraines only cause transient housebound status. VA examinations indicated the veteran was mobile, capable of self-care, and did not require assistance with daily activities or protection from environmental hazards. The Board found the objective assessments more persuasive than the veteran's lay testimony regarding his capabilities.

Rationale

No competent evidence of in-service incurrence.; Did not manifest to a compensable degree within one year of separation.; VA examiner opined less likely than not related to service-connected conditions or medications.

Special Benefit

SMC - AID & ATTENDANCE; SMC - HOUSEBOUND

Docket No.

13-22 212

Full Decision Text

Citation Nr: 1727932
Decision Date: 07/18/17 Archive Date: 07/27/17

DOCKET NO. 13-22 212 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas

THE ISSUES

1. Entitlement to service connection for hypertension, to include as secondary to all service-connected conditions.

2. Entitlement to special monthly compensation (SMC) on the need for aid and attendance/housebound status.

ATTORNEY FOR THE BOARD

D. Barrett, Associate Counsel

INTRODUCTION

The Veteran had active service from November 1967 to October 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. A February 2011 decision denied a petition to reopen a previously denied claim for service connection for hypertension. A June 2014 decision denied entitlement to SMC.

In March 2014, the Board reopened and remanded the claim for service connection for hypertension. The appeal was also remanded September 2015

FINDINGS OF FACT

1. Hypertension was not manifest in service or within one year of discharge, is unrelated to service, and not secondary to any service-connected disabilities.

2. The Veteran's service-connected disabilities do not prevent him from attending to the needs of nature, caring for himself, or protecting himself from the hazards of his environment.

3. The Veteran has a disability rated as permanent and total, but not additional disabilities independently ratable at 60 percent or more; and he is not permanently housebound by reason of his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2015); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016).

2. The criteria for SMC based on aid and attendance or housebound status are not met. 38 U.S.C.A. § 1114 (West 2015); 38 C.F.R. § 3.350 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. In this case, it does not appear the Veteran has asserted any deficiency regarding the notification and assistance he has received regarding his claims. Accordingly, the Board need not search for, or address, any such argument. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015).

I. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases, including hypertension, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.

Service treatment records do not show the Veteran suffered from hypertension while in service. VA treatment records indicate the Veteran was first screened for hypertension in July 1998 and a VA discharge note indicates hypertension was diagnosed in July 1999. Therefore, the Veteran is unable to establish service connection for hypertension on a direct basis because there is no competent evidence of an in-service incurrence. Hypertension is also not presumed to have been incurred during service because it did not manifest to a compensable degree within one year of separation from active duty.

The Veteran specifically contends his hypertension is a secondary disorder resulting from medication he is taking for his service-connected disabilities, including posttraumatic stress disorder (PTSD), migraine headaches, seborrheic dermatitis, and erectile dysfunction. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Service connection may be granted where disability is prox
in July 1999. Therefore, the Veteran is unable to establish service connection for hypertension on a direct basis because there is no competent evidence of an in-service incurrence. Hypertension is also not presumed to have been incurred during service because it did not manifest to a compensable degree within one year of separation from active duty.

Service connection may be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is also payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439(1995) (en banc).

The Veteran, as a lay person, is competent to report symptoms he can personally observe. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is also competent to diagnose a simple medical condition, capable of lay observation. However, determining the etiology of his hypertension is a complex medical question that exceeds the realm of personal lay opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). That is, a competent medical opinion is necessary to establish the etiology of the Veteran's hypertension.

A 'competent medical opinion' means an opinion provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Veteran has not shown that he is qualified through education, training, or experience to offer a competent nexus opinion on a complex medical question such as the one involved in this case. Thus, he is not competent to analyze the etiology of his hypertension and an expert medical opinion is necessary.

In May 2014, VA requested an examiner provide a medical opinion on whether the Veteran's hypertension was caused by or aggravated by his service-connected PTSD. The examiner concluded that the Veteran's hypertension was less likely than not (less than 50 percent probability) caused by PTSD because the examiner could not find any peer-reviewed, repeatable literature to support the proposition that hypertension was caused by or aggravated by PTSD.

The examiner's opinion did not include an analysis of all the Veteran's service-connected disabilities, so he was asked to provide an addendum opinion in March 2016. In the March 2016 opinion, the examiner stated he could not find any peer-reviewed, repeatable studies that supported the claim that the Veteran's hypertension was proximately due to or the result of any of his service-connected disabilities, or the result of any medications taken for these conditions and/or medication for his PTSD. Similarly, the examiner could not find any peer-reviewed, repeatable studies that supported that hypertension was aggravated beyond its natural progression by the Veteran's service-connected seborrheic dermatitis, migraine headaches, and erectile dysfunction, to include as a result of any medication taken for these conditions and/or medication for his PTSD. The examiner further concluded it was less likely than not that the Veteran's hypertension was related to his service and presumed herbicide agent exposure.

The Board has carefully considered the VA opinions and the Veteran's statement that his hypertension is caused by his medications. However, as noted above, the Veteran lacks the requisite expertise to provide a competent medical opinion. Therefore, the only competent evidence of record is that of the VA examiner. The examiner based his opinion on his clinical experience, medical expertise, review of the literature, and established medical principles. The Board finds this examiner's opinions highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008).

Since the competent and probative evidence of record fails to indicate that the Veteran's hypertension has been etiologically related to service, or was caused or aggravated by a service-connected disability, service connection is not warranted. Further, as there is no evidence showing initial manifestations of hypertension in service, or to any degree within one year of separation from service, the one-year presumption for hypertension under 38 C.F.R. §§ 3.307 and 3.309 is not an avenue for service connection, nor are the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity
uez v. Peake, 22 Vet. App. 295, 302-3 (2008).

As the preponderance of the evidence is against the claim under any applicable theory of service connection, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Service connection for hypertension is not warranted.

III. Special Monthly Compensation (SMC)

SMC is payable when a Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b)(3) (2016).

Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid; inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers inherent in his daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a).

SMC is also payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114 (s); 38 C.F.R. § 3.350(i). The requirement of "permanently housebound" status will be considered to have been met when the veteran is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his lifetime. See 38 U.S.C.A. § 1502 (c); 38 C.F.R. § 3.351 (d)(2).

Service connection is in effect for PTSD rated totally disabling; seborrheic dermatitis rated 30 percent disabling; migraine headaches rated 30 percent disabling; and erectile dysfunction rated noncompensable. The Veteran is currently in receipt of SMC for the loss of use of a creative organ pursuant to 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a).

The Veteran's outpatient treatment records are unremarkable for any findings suggestive of the need for regular aid and attendance of another person.

The Veteran underwent a VA examination for the purposes of determining aid and attendance in October 2008. The VA examiner reported the Veteran had headaches once or twice monthly lasting as long as six or seven days to the point that he has to take Tylenol No 3 for relief. He does not have any associated nausea or emesis. He sometimes had a mild headache for a few hours before the acute headaches began, but he did not have an actual aura. When he had the headaches, he usually went to bed, otherwise he was inactive primarily sitting around the house and watching television. He was able to leave home and drive his car to the grocery store or to the doctor's appointments when not having a severe headache. The examiner indicated that the Veteran is not homebound due to the headaches except during the actual period of acute headache which occurs as described above. The examiner observed the Veteran to be a well-developed and nourished male. He had no restrictions of the upper or lower extremities. He was able to eat, drink, dress, shave, attend to all his needs of nature, and ambulate without restrictions. He was capable of walking without assistance. From the standpoint of the migraine headaches he is housebound transiently for several days once or twice monthly due to the severity of the headache. The examiner also concluded that from the standpoint of erectile dysfunction there was no impairment to the extent that he requires aid and attendance or is housebound.

At a VA skin examination in May 2014, a VA examiner indicated that the Veteran's service-connected seborrheic dermatitis involved less than 20 percent of his exposed body area and did not impact his or her ability to work. Treatment included use of topical corticosteroids and was not debilitating.

At a VA migraine examination in May 2014, the Veteran was noted to have characteristic prostrating attacks of migraine/non-migraine headache pain only once a month. The examiner indicated that he did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability.

At a VA psychiatric examination in May 2014, the Veteran's PTSD symptoms were noted as: depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner indicated that the Veteran was reportedly able to perform activities of daily living without problems. He was able to go shopping if needed, drive himself to local places, and to some extent participate in grandchildren's activities. The examiner stated that she did not find that the Veteran's PTSD symptoms would require aid and attendance of another person.

The Veteran underwent a VA examination in May 2014, specifically for the purposes of determining aid and attendance. The examiner reported the Veteran was capable of driving and did so sometimes, although his wife did most of the driving. The Veteran was able to go outside unattended and operate his riding mower. He was able to feed and bathe himself. The examiner concluded that the Veteran did not need any assistance with activities in his daily life and was not housebound.

The Veteran does not qualify for SMC based on housebound status. First, the Veteran has a single service-connected disability rated as total (i.e. PTSD), but he does not have additional service-connected disabilities independently ratable at 60 percent, separate and distinct from this 100 percent service-connected disability involving different anatomical segments or bodily systems. The combined total for the Veteran's additional service-connected disabilities, separate from PTSD, is 50 percent. See 38 C.F.R. § 4.25. Second, and finally, the evidence does not show, nor does the Veteran aver, that he is substantially confined to his dwelling or home due to the severity of his health problems. Rather, the evidence reflects that his migraines only cause him to be housebound on a transient basis, only several days once or twice monthly, due to the severity of the headaches. Otherwise, he is not permanently housebound or substantially confined to his house or its immediate premises. Therefore, the criteria for SMC at the housebound rate are not met.

The evidence shows that the Veteran also does not meet the criteria for SMC based on the need for aid and attendance. The evidence demonstrates that he is not so helpless as to be in need of regular aid and attendance within the meaning
show, nor does the Veteran aver, that he is substantially confined to his dwelling or home due to the severity of his health problems. Rather, the evidence reflects that his migraines only cause him to be housebound on a transient basis, only several days once or twice monthly, due to the severity of the headaches. Otherwise, he is not permanently housebound or substantially confined to his house or its immediate premises. Therefore, the criteria for SMC at the housebound rate are not met.

The evidence shows that the Veteran also does not meet the criteria for SMC based on the need for aid and attendance. The evidence demonstrates that he is not so helpless as to be in need of regular aid and attendance within the meaning of 38 C.F.R. § 3.352(a) as a result of his service-connected disabilities. The evidence, as discussed above, clearly shows that he is mobile and functioning rather independently. The Veteran is not shown to have suffered the anatomical loss or loss of use of any extremity. He is not blind in either eye, nor is he permanently bedridden or in a nursing home. The evidence reflects that he is able to dress himself, keep himself clean and presentable, feed himself, attend to the wants of nature, and sufficiently protect himself from the dangers incident to his daily environment.

The Veteran is competent to report his ongoing symptoms which are capable of lay observation and describe his physical limitations. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Board finds the objective assessments by medical providers to be more accurate assessments of his physical capabilities. Id. The clinical record and VA examination reports fail to show that symptoms from any of his service-connected disabilities result in the need for aid and attendance of another person. The evidence does not show that the Veteran has an inability to perform many activities of daily living, nor does he have an inability to protect himself in his daily environment. 38 C.F.R. § 3.352(a). The Board acknowledges that the Veteran's various disorders impact his life and limit his ability to do all of the things he would like to do. However, the Board finds the objective assessments and opinions from the VA examiners to be highly persuasive as to whether the Veteran requires the aid and attendance of another person as a result of his service-connected disabilities.

The preponderance of the probative evidence shows that the Veteran is not in need of aid and attendance, nor is he housebound. As the preponderance of the evidence is against the claim, the reasonable doubt rule does not apply. The claim is denied. 38 U.S.C.A. § 5107 (b).

ORDER

Service connection for hypertension, to include as secondary to all service-connected conditions, is denied.

Special monthly pension by reason of the need for regular aid and attendance of another person, and/or of being housebound due to disabilities is denied.

____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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