Citation Nr: 0001506 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 97-25 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for hypertension, claimed as high blood pressure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The veteran had active service from January 1953 to January 1955. At present, after remand to the RO for additional development, the veteran's case is once again before the Board for appellate review. Additionally, the Board notes that the hearing transcript issued following the October 1997 appeal hearing at the RO shows the veteran desired to have an appeal hearing before the Board. However, the hearing transcript also shows that after further discussing this issue with his representative, the veteran withdrew his request for a hearing before the Board; no further requests for hearings have been made by the veteran. Therefore, pursuant to 38 C.F.R. § 20.704(e) (1999), the veteran's request for a hearing before the Board is considered withdrawn. FINDING OF FACT No competent evidence has been submitted that would tend to indicate that the veteran's hypertension is related to his period of military service. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for hypertension, claimed as high blood pressure, is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the National Personnel Records Center (NPRC), in response to a VA request for the veteran's service records, reported that the veteran's records may have been destroyed in the fire at the Records Center in 1973. All searches for alternative sources of records were fruitless, including March 1997 and August 1997 supplemental searches for morning reports, which yielded negative results. The Board finds that the RO has undertaken all possible development to obtain the veteran's service medical records. While the absence of the veteran's service medical records is clearly not helpful to the veteran's claim, the absence of those records does not preclude the granting of service connection. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). In addition, service connection may be granted for specific diseases or conditions which are, by law, presumed to have been incurred during service if manifested to a compensable degree within a specified period of time, generally, one year, as in the case of hypertension. 38 U.S.C.A. § 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The threshold question which must be answered in this case, however, is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The veteran must satisfy three elements to well ground his/her claim(s). First, there must be competent evidence of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury. Lastly, there must be medical evidence of a nexus or relationship between the in-service injury or disease and the current disability. See Epps v. Brown, 9 Vet. App. 341 (1996). In determining whether a claim is well grounded, the truthfulness of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). With respect to the evidence of record, medical records from Virgil O. Smith, D.O., dated from January 1990 to March 1999 describe the treatment the veteran received for various health problems including, but not limited to, hypertension, Raynaud's phenomenon, and gout. In addition, a May 1997 statement from Dr. Smith indicates the veteran had been under his care since 1963 for high blood pressure, as well as that he was diagnosed with arteriosclerotic heart disease in 1988 at the Oklahoma City Clinic. Records from the Bonham VA Medical Center (VAMC) dated from May 1997 to October 1998 describe the treatment the veteran received for various health problems including arteriosclerotic changes involving the aorta, degenerative joint disease of the spine, hypertension, and gout. Specifically, the Board notes these records contain November 1997 medical notations indicating the veteran suffered from familial hypertension. Lastly, statements made, in writing and during the October 1997 appeal hearing, by the veteran, his brother and his representative indicate the veteran first developed hypertension during his service. Specifically, the veteran noted he was treated for dizzy spells in 1953 and 1954 at the Great Lakes Navy Hospital in Chicago. At that time, he was reportedly diagnosed with hypertension and was prescribed medication for it. The veteran further reported he was treated for hypertension between 1955 and 1956 by his private physician, Dr. Wilson, but that these records were no longer available. After a review of the evidence of record, the Board finds that the veteran has not submitted objective medical evidence showing that his hypertension is related to his period of service. Specifically, he has failed to satisfy an essential element necessary to well ground his claim, which is the existence of a nexus between his current hypertension and his service. A well-grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In addition, the Board finds that the earliest evidence of record that the veteran was treated for or diagnosed with hypertension is contained in the May 1997 statement from Dr. Smith indicating he had been treating the veteran since 1963 for hypertension, which is about eight years after the veteran's discharge from service. As such, the Board finds that the evidence does not show the veteran's hypertension became manifest to a compensable degree within a one year period of his discharge from service, and thus, he is not entitled to an award of service connection on a presumptive basis under 38 C.F.R. § 3.307 and 3.309. As well, given this 8 year gap, the chronicity provisions of 38 C.F.R. § 3.303(b) are not for application in this case. Therefore, in the absence of competent medical evidence to support the claim of service connection for hypertension, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, and the claim will be denied on that basis. See 38 U.S.C.A. § 5107(a). In arriving at this conclusion, the Board has taken into consideration the various written statements submitted by the veteran, his brother and his representative tending to link the claimed disorder to the veteran's period of service. While the Board acknowledges the sincerity of these statements, the Board notes that neither the veteran, his brother, or his representative, as lay persons, are qualified to offer a medical opinion regarding the etiology of the veteran's claimed disorder, nor are they qualified to fulfill the nexus requirement. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); see also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit, supra, in which the Court held that a veteran does not meet the burden of presenting evidence of a well grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer such medical opinions). See generally Clyburn v. West, 12 Vet. App. 296 (1999). Furthermore, as the veteran has failed to meet his initial burden of submitting evidence which would well ground his claim of service connection, VA is under no duty to assist the veteran in developing the facts pertinent to the above claim. See Epps, supra. There is nothing in the text of section 5107 to suggest that VA has a duty to assist the claimant until he or she meets his or her burden of establishing "well grounded" claims. See 38 U.S.C.A. § 5107(a) (West 1991); see also Epps, supra. Moreover, the Board acknowledges that the records from the Bonham VAMC contain May 1997 notations which suggest the veteran may be receiving Social Security Administration (SSA) benefits. In this regard, the Board finds that, as the claims file does not contain any indication that the veteran's SSA records, if obtained by the VA, would support a conclusion that the veteran's hypertension is related to his period of active service, the VA is under no duty to obtain such records. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). In this regard, the veteran is reminded that he also has an obligation to assist in the adjudication of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The veteran must be prepared to meet his obligations by cooperating with the VA's efforts by submitting to VA all medical evidence supporting his claim, including any applicable records from the SSA. Olson v. Principi, 3 Vet. App. 480 (1992); see Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (holding that once a claimant has established that he/she has a well grounded claim, the VA's duty to assist under 38 U.S.C.A. § 5107(a) includes the duty to obtain records in the control of a government agency, such as in the case of the SSA, which have been specifically identified by the claimant as facially relevant and material to the claim). The Board views its discussion as sufficient to inform the veteran of the elements necessary to present a well grounded claim of service connection, and the reasons for which his claim has failed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER Evidence of a well-grounded claim not having been submitted, service connection for hypertension, claimed as high blood pressure, is denied. JOHN R. PAGANO Acting Member, Board of Veterans' Appeals