Citation Nr: 0006470 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 95-35 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension as a proximate result of prisoner-of-war experiences. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Vito A. Clementi, Counsel INTRODUCTION The appellant had active duty from December 1942 to September 1945. He was a prisoner of war of the German government from December 1944 to April 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (the RO) which denied the appellant's claim of entitlement to service connection for hypertension. In his July 1995 Notice of Disagreement, the appellant challenged the RO's denial of service connection for hypertension, the residuals of malnutrition, a left foot disorder, and hemorrhoids. Following the issuance of a Statement of the Case, the appellant withdrew from appellate consideration all issues but his claim of service connection for hypertension. Because the appellant has withdrawn the issues as specified, they are not before the Board for review. See 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.204 (1999). FINDING OF FACT There is no competent medical evidence of record demonstrating that the appellant's hypertension is related to his military service, any incident thereof, or any service- connected disability. CONCLUSION OF LAW The claim of service connection for hypertension is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant contends that hypertension was incurred as a result of experiences he had while a prisoner of war (POW). He also appears to contend that his hypertension may be due to his service-connected psychiatric disability. By law, the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); 38 U.S.C.A. § 7104(d)(1) (West 1991). With this requirement of law, and in n the interest of clarity, the Board will review the law, VA regulations and other authority which may be relevant to this claim; briefly describe the factual background of this case; and then proceed to analyze the claim and render a decision. Relevant Law and Regulations Service connection - in general In general, service connection may be established for disability resulting from disease or injury suffered in line of duty. 38 U.S.C.A. § 1110. Service connection may also be granted for chronic disabilities, including hypertension, if shown to be manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Service connection may also be granted for disability which is due to service-connected disease or injury. 38 C.F.R. § 3.310. See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Service connection - POW Certain listed diseases may be service connected if manifested by a former POW who was interned or detained for not less than 30 days to a degree of 10 percent or more at any time after discharge even though there is no record of such disease during service. 38 C.F.R. § 3.309(c). Such diseases do not include cardiovascular disease, except for beriberi heart disease, which covers ischemic heart disease in a former POW who had experienced localized edema during captivity, which is included in the list of POW presumptive diseases. Hypertension is not a disease included in those disorders presumptively linked. Well grounded claims The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim. Under the law, a person who submits a claim for benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist in the claim's development. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim is "one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible" in order meet the burden established in the statute. Kandik v. Brown, 9 Vet. App. 434, 439 (1996); Tirpak, 2 Vet. App. at 611. In order for the appellant's claim to be well grounded, there must have been presented competent evidence of a current disability; a disease or injury which was incurred in service, and a nexus between the disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996)(table); see Watai v. Brown, 9 Vet. App. 441, 443 (1996). A secondary service connection claim is well grounded only if there is medical evidence to connect the asserted secondary condition to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998); see also Locher v. Brown, 9 Vet. App. 535, 538-39 (1996) [citing Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995)]. The burden to submit evidence sufficient to establish a "well-grounded" claim is the claimant's alone. Epps v. Gober, 126 F.3d 1464, 1469 (Fed.Cir. 1997). It has been observed that in Epps, the Federal Circuit Court of Appeals "definitively held that 'there is nothing in the text of [38 U.S.C.A] § 5107 to suggest that [] VA has a duty to assist a claimant until the claimant meets his or her burden'" of establishing a well-grounded claim before providing any assistance to the claimant." Morton v. West, 12 Vet. App. 477, 481 (1999) (emphasis added). It was also noted that the claimant's burden to produce evidence to render a claim well grounded was a "condition precedent established by Congress" that neither VA nor the Court was free to ignore. Morton, 12 Vet. App. at 485. Where the determinative issue involves either medical etiology or diagnosis, competent medical evidence is necessary to fulfill the well-grounded claim requirement. Where the determinative issue does not require medical diagnosis or etiology, lay testimony by itself may suffice to meet the statutory burden. Caluza, 7 Vet. App. at 504; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The truthfulness of evidence is presumed in determining whether a claim is well grounded. Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background As is noted above, the record reflects that the appellant was a prisoner of war of the German government from December 1944 to April 1945. His service medical records, including a September 1945 pre-separation physical examination, are devoid of any mention of any cardiovascular symptoms, complaints or diagnoses. In September 1945, his blood pressure was noted to be 120/80. The appellant was hospitalized at a VA facility from April through June 1958, and treated for a depressive reaction. His blood pressure was noted to be 110/70. During a period of VA hospitalization from August to November 1958, the appellant's blood pressure was noted to be 120/80. The appellant was treated at the John Sealy Hospital from May to June 1959 for an episode of depression. His blood pressure was then recorded as 114/72. There are no references in the hospitalization report to hypertension. In March 1981, the appellant was treated by the Rugeley and Blasingame Clinic Association for hypertension. The appellant underwent a VA "POW Protocol" examination in June 1994. He reported that he had had hypertension for "more than 10 years." Among other disorders, the appellant was diagnosed to have hypertension. There is no mention of the etiology of the disorder in the examination report. In an August 1994 VA medical record progress note, the appellant was reported to have had hypertension since 1981. The appellant underwent a VA physical examination in September 1994. He was diagnosed to have hypertension. There is no mention of the etiology of the disorder in the examination report. In his September 1995 substantive appeal, the appellant argued that his hypertension was the proximate result of his POW experience. In March 1997, the appellant proffered a copy of a newspaper article outlining a study by researchers at the National Center for Health Statistics. The study found that people who had anxiety and depression were "more than twice as likely" to develop high blood pressure than those who did not have the predicate symptoms. It reported that the researchers had studied 3,000 subjects from the ages of 24 to 64 who had no high blood pressure at the beginning of the study. As they were monitored from seven to 16 years, "a pattern" was found. As to the nature of the "pattern," no information is given other than to observe that "even intermediate levels of anxiety and depression were associated with a 60 percent greater likelihood of developing hypertension. That was true even when other factors, such as education, smoking alcohol use and body mass, were taken into account." In a September 1997 statement, the appellant reiterated that he was prescribed medication for hypertension in 1981. He stated that he believed his hypertension was caused by the stress he felt being a former POW, and by not having been given proper food and living conditions during that experience. In an October 1997 statement, the appellant's wife reported her observations relative to the appellant's stress he experienced during the course of their marriage. Analysis As an initial matter, there is no question that the appellant currently is diagnosed as having hypertension. It is undisputed that the appellant is an ex-POW. The appellant's service-connected disabilities include post-traumatic stress disorder with major depression and anxiety disorder [formerly recurrent major depression and anxiety disorder with post- traumatic stress disorder traits]. In essence, the appellant contends that the stress associated with his captivity during World War II, and/or the stress caused by his service-connected psychiatric disability, has caused hypertension. Having carefully considered all of the evidence of record and presumed it credible, see King, the Board finds that the appellant has not submitted a well-grounded claim of entitlement to service connection for hypertension. In essence, and as will be described in greater detail below, applying the Caluza analysis, there is ample evidence of a current disability. There is, however, no evidence of in- service incurrence of hypertension, to include during the one year presumptive period after service. There is also no evidence of a medical nexus between the appellant's currently diagnosed hypertension and his service, including stresses experienced while a POW, and/or his service connected disabilities. As is noted above, hypertension is a chronic disease for which service connection may be granted, if the disorder is manifested to a compensable degree within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309. In this matter, all medical and lay evidence of record places the onset of hypertension beginning in the 1980's, decades after service and well after one year subsequent to the appellant's separation from active service. To the extent that the appellant believes hypertension manifested earlier than that time, he is unqualified to render such an assertion. It is now well-settled that laypersons are not qualified to render medical opinions regarding the etiology of disorders and disabilities, and such an opinion is entitled to no weight. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In this regard, omission of history or findings from clinical records made upon repatriation is not determinative of service connection, particularly if evidence of comrades in support of the incurrence of the disability during confinement is available. Applicable regulation provides that special attention will be given to any disability first reported after discharge, especially if poorly defined and not obviously of intercurrent origin. The circumstances attendant upon the individual veteran's confinement and the duration thereof will be associated with pertinent medical principles in determining whether disability manifested subsequent to service is etiologically related to the POW experience. 38 C.F.R. § 3.304(e). During the course of this claim of service connection for a psychiatric disorder, the appellant has submitted statements from fellow POWs as to the circumstances of their capture. The Board has no reason whatsoever to doubt these statements. However, these statements do not reflect any information relative to the onset of hypertension. Indeed, had they done so, there is no evidence to suggest that the appellant's colleagues have medical expertise to make competent observations as to the onset of diseases and disorders. Espiritu, supra. With regard to the appellant's contention that hypertension developed as a result of his POW experiences, hypertension is not among those diseases presumptively linked to such by applicable regulation. 38 C.F.R. § 3.309(c). Accordingly, the presumption alone does not suffice to well ground the claim. As discussed immediately above, the appellant's lay opinion as to the etiology of his hypertension cannot serve to make the claim well grounded. The Board has undertaken a review of the evidence towards determining whether there is any other evidence which that would link the appellant's hypertension to his POW experience, or to any event of his military service, or to his service-connected disabilities on a secondary basis. Having done so, the Board finds that competent evidence of such linkage has not been obtained. The Board has carefully examined the proffered newspaper article reporting the findings of a study from the National Center for Health Statistics. However, the Board finds that the article, together with the other evidence of record, does not suffice to well ground the appellant's claim. The appellate courts have observed in this regard that in some circumstances, the submission of medical evidence reflecting that the presence of certain symptoms, and medical treatise evidence that indicated that the presence of these symptoms would indicate that the claimed service-connected disorder was present, may render the claim well grounded. The Court pointed out that it was necessary for VA to approach this scenario on a case-by-case basis; where the facts as ascertainable by a medically untrained individual could be reported, and where the proffered medical text or treatise could support the proponent's theory that those facts indicated the presence of a disorder, a claim should be found to be well grounded and developed. Wallin v. West, 11 Vet. App. 509, 512-513 (1998). The Board is here presented with a newspaper article, not a medical treatise, that posits that those with anxiety and depression are "more than twice as likely to develop" hypertension. However, the article is not, in and of itself, medical evidence. Instead, it is a recounting of generic findings of one study made by researchers, without validation or indeed comment by the medical profession. It does not explain the medical basis for the conclusions reached by the examiners, and does not extend the results of the study to those beyond its test subjects. See also Bloom v. West, 12 Vet. App. 185 (1999) [In the examination of medical opinion evidence, inquiry must be made into the nature of the expressed opinion, the clinical data used to formulate the opinion, its rationale, or any other factors that would give it substance. The source of the opinion, the extent of the physician's expertise, and the physician's report of the development of the claimed disorder and the rationale for the expressed opinion may also be addressed in determining the well groundedness of a claim.]. The Board further observes that the Court has held that medical opinions which are speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). There can be no doubt that the appellant in this matter sustained significant hardship as a POW, or that his belief that his hypertension was incurred during or as a result of those experiences is sincere. However, the Board is bound by applicable statutes enacted by law, and by the decisions of the U.S. Court of Appeals for Veterans Claims and higher appellate courts. In short, for the reasons and bases expressed above, the Board concludes that the appellant's claim is not well grounded. The benefit sought on appeal is accordingly denied. Additional Matters The Board has examined all evidence of record with a view towards determining whether the appellant has notified VA of the possible existence of information which would render his claim plausible. The Board finds no such information. See Beausoleil v. Brown, 8 Vet. App. 459, 464-465 (1996); Robinette v. Brown, 8 Vet. App. 69, 80 (1995); see also generally Stuckey v. West, 13 Vet. App. 163, 175 (1999) [observing in part that when it is alleged that there is specific evidence in existence that would manifestly well ground a claim, VA has a duty to inform the claimant of the importance of obtaining this evidence to "complete the application." (italics added)]. The Board's decision serves to inform the appellant of the kind of evidence which would be necessary to make his claim well-grounded, namely competent medical evidence which provides a nexus between the appellant's service and/or his service connected disabilities and his currently diagnosed hypertension. When the Board addresses in its decision a question that has not been addressed by the RO, in this case well-groundedness, it must consider whether the appellant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes, however, that the appellant has been accorded ample opportunity to fully present his claim, and any error by the RO in the adjudication of the claim on a broader basis that that applied by the Board could not be prejudicial. CONTINUED ON NEXT PAGE ORDER A well-grounded claim not having been submitted, service connection for hypertension is denied. Barry F. Bohan Member, Board of Veterans' Appeals The Board notes that in a March 2000 brief, the appellant's accredited representative styled the issue as "entitlement to service connection for an acquired cardiovascular disorder, to include hypertension and cardiac dysfunction". However, the record does not indicate either that the appellant sought service connection for heart disease, as such, or that heart disease currently exists. The Board therefore believes that the issue is correctly stated in the July 1995 Statement of the Case as entitlement to service connection for hypertension. The Board notes that service connection is in effect for post-traumatic stress disorder with major depression and an anxiety disorder; a duodenal ulcer, and the residuals of a gunshot wound scar of the left forearm.