Citation Nr: 0001495 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 93-14 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for heart murmur. 3. Entitlement to service connection for blackouts. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The appellant had active service from May 1953 to March 1957. This matter comes before the Board of Veterans Affairs (the Board) on appeal from a March 1993 rating decision, in which the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for hypertension, a heart murmur and blackouts. The Board remanded these claims in April 1995, February 1998 and December 1998. FINDINGS OF FACT 1. No medical evidence has been presented or secured to establish that hypertension was manifested during service or to a degree of ten percent within one year following discharge from active service. 2. No medical evidence has been presented or secured to establish that the appellant's pre- existing systolic heart murmur underwent a permanent worsening during service either by way of aggravation or superimposed injury. 3. No medical evidence has been presented or secured showing a causal relationship, or nexus, between syncopal episodes and active service. CONCLUSIONS OF LAW 1. The claim for service connection for hypertension is not well grounded, and there is no further statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for a heart murmur is not well grounded, and there is no further statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim for service connection for blackouts is not well grounded, and there is no further statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Summary The appellant contends, in essence, that his hypertension, heart murmur and syncopal episodes were incurred and/or aggravated during his period of active service. According to his statements of record, his heart murmur was first detected during a high school physical examination. This condition was asymptomatic, however, and he participated in high school football without any problems. He denied any pre- service symptomatology of hypertension or syncopal episodes. Rather, he first manifested headaches and blackouts during his overseas service in Korea. He also alleged that some high blood pressure readings had been recorded in service. He underwent his discharge examination in Japan at which time he was advised to undergo further examination when he returned stateside due to his heart murmur. He did not, however, seek another examination prior to his discharge from service. The appellant further alleged that, following his discharge from service, he continued to experience headaches and blackouts. He recalled being informed by Dr. Atwell B. Pride that his headaches and blackouts stemmed from high blood pressure and hypertension. Dr. Pride is now deceased and his treatment records are not available. He couldn't remember his specific dates of treatment, but he recalled that Dr. Pride treated him within several years from his discharge from service. He did indicate that he didn't receive any treatment in 1959. Lay statements of record from family members, friends and co- workers corroborate the appellant's allegations of symptoms of syncopal episodes and headaches following his return from service. His mother recalled him being prescribed medications for hypertension "since 1960." His wife, who had known him since 1960, also remembered his treatment with Dr. Pride for headaches and blackouts in the 1960's. Unfortunately, service medical records are unable to verify the appellant's allegations of in- service treatment for hypertension, syncopal episodes and heart murmur as they have presumably been destroyed in the 1973 fire at the National Personnel Records Center in St. Louis. Search for alternative sources of service information have been unsuccessful. The first available post- service medical records concern the appellant's treatment for prostatitis at St. Mary's Hospital in September 1966. At that time, there is no documentation of blood pressure readings or other pertinent findings relating to the appellant's claim on appeal. A December 1971 record concerning treatment for perianal abscess with fistula recorded a blood pressure reading of 142/88. Physical examination failed to detect "murmurs" and no diagnosis of hypertension was noted. On April 19, 1973, the appellant presented to John E. Bechtold, M.D., with complaint of recent onset of chest pain and frontal headaches of 4- 6 months' duration. At that time, Dr. Bechtold recorded the appellant's comment of "no knowledge of prior hypertension." Physical examination and diagnostic testing revealed findings of Grade II pulmonic murmur of the left 2nd and 3rd parasternal spaces, hypertension, and probable left ventricular hypertrophy. Dr. Bechtold indicated the appellant's symptoms were most likely of a gastric or pancreatic origin. On April 21, 1973, Dr. Bechtold noted his findings as follows: "In questioning [the appellant] about his heart murmur, he states that this first was mentioned to him at the age of 15 when he had a P.E. for football in high school. Apparently, he was admitted to the service without any difficulty, but at the time of his discharge, something was said about heart murmur, and that he should have another P.E. in the States. His original discharge physical was done in Japan. Since that time no mention of heart murmur, but no physician either. Exam again today shows at least a grade II systolic murmur along the [left] sternal border. No diastolic murmurs. EKG today essentially unchanged. Impression: Strong possibility that there may be a congenital heart disease with a possible ventricular septal defect." On September 7, 1973, Dr. Bechtold reported the following history as told by the appellant: "Pt. was able to carry on well on terms of athletic[s] and was in the military with no particular distress as far as his heart was concerned. Murmur has been known for some yrs. and has not been particularly bothersome, as far as he is concerned." Also on September 7, 1973, Dr. Gerard, an affiliate of Dr. Bechtold, noted the following diagnostic impressions: 1) Heart murmur which may be congenital ventricular septal defect or might possibly be an innocent pulmonic murmur. I do not feel, however, that it is hemodynamically significant ... 3) Situational anxious and depressive reaction, probably manifesting itself as tension headaches and functional gastrointestinal problems." In a letter dated on July 29, 1974, Eugene H. Holly, M.D., reported to Dr. Bechtold the appellant's history of headaches which "started about two to three years ago." Upon initial examination, the appellant manifested "marked" hypertension which had subsided with ten to fifteen minutes of bedrest. Electroencephalogram (EEG) study and brain scans were interpreted as "normal" and a diagnosis of pheochromocytoma was entertained. A notation from the West Palm Beach Medical Group, dated in April 1976, indicated an impression of lightheadedness probably due to postural hypotension secondary to drug therapy, history of essential hypertension and probable innocent pulmonic murmur although asymptomatic ventricular septal defect could not entirely be excluded. VA clinical records show treatment for poorly controlled hypertension beginning in February 1991. At that time, an echocardiogram revealed findings of increased systolic thickness of the left ventricle in a concentric fashion. Impression included left ventricular concentric hypertrophy with preserved left ventricular systolic performance at rest. In April 1991, the appellant presented with complaint of syncope. At that time, he reported a history of "hypertension since early 1970's - he fainted at that time - did not convulse." An August 1991 EEG was interpreted as "normal." In November 1992, he reported "recurrent bouts with passing out ... problems with heart while in service." In July 1993, he was treated for a cerebrovascular accident. On VA general medical examination, dated in February 1994, the appellant recalled having some elevated blood pressure readings prior to 1970, but that he did not receive treatment for it until 1970. He reported episodes of syncope with loss of consciousness and elevated blood pressure for the past 20 years or more. He denied any episodes of tonic or clonic seizures. The examiner commented that the appellant's syncopal episodes resulted from decreased oxygen or blood flow to his brain which caused seizures. However, the absence of the convulsions indicated a possible diagnosis of Stokes Adams syndrome. Recent computerized tomography (CAT) scan studies revealed evidence of small vessel infarct secondary to ischemic changes consistent with those found on physical examination. Impression was of arteriosclerotic cardiovascular disease, essential hypertension and residual cardiovascular accident (CVA) with right hemiparesis. On VA hypertension examination, dated in May 1995, the appellant reported a "dim recollection" of having been told of elevated blood pressure during service. He did not, however, take medication for his condition until beginning treatment with the "Palm Beach Medical Group" sometime in "1960." Physical examination revealed a grade 2 systolic murmur, probably due to aortic stenosis, and essential hypertension. A May 1995 VA diseases of the heart examination noted a negative history of rheumatic fever. Physical examination revealed a grade 1 to 2 over 6 systolic murmur. On VA hypertension examination, dated in May 1996, the appellant reported a history of occasional dizzy spells which warranted sick call visits during service. He also had occasional high blood pressure readings but no medication was prescribed. He was first prescribed blood pressure medication by a family physician several years after service. The remainder of his history and physical examination revealed diagnoses of essential hypertension, hypertensive vascular disease with probable atrial fibrillation and embolic cardiovascular accident in 1993, and history of acute myocardial infarction 1988 for bilateral small reducible On VA diseases/injuries of the brain examination, dated in October 1996, the appellant reported that he had high blood pressure readings in service and that a cardiac murmur was found prior to his discharge. The examiner noted that the earliest medical records available, dated back to the early 1970's, revealed a heart murmur and fluctuant high blood pressures due to poor control and compliance. He had a right cerebrovascular embolic accident in 1993. At that time, he had a normal Holter monitor but an abnormal CT scan which revealed right parietal infarct and questionable left- sided lacunar infarct. A subsequent dobutamine stress digital echocardiogram found clinically significant and moderate hypertensive heart disease and a focal nodule present on the aortic valve. There was no inducible myocardia ischemia, but there was mild pulmonary hypertension. Based upon the above, the VA examiner opined that the appellant's hypertension could not be dated back to service because there were no records available. In this respect, it was noted that, while the appellant may have manifested elevated blood pressure readings during service, such readings may have resulted from a variety of situational factors (i.e., being upset, tired or under the influence of alcohol). It was noted that high blood pressure would have been treated if it had been persistent. Upon consultation with a nephrologist, cardiologist, ophthalmologist and a medical treatise, the examiner indicated that there was no way to date high blood pressure utilizing diagnostic testing as the biological aggressiveness of a given hypertension varied from individuals. The examiner further opined that the appellant's heart murmur was secondary to the focal nodule in the aortic valve and not because of hypertension or atrial fibrillation. The stroke was an embolic episode secondary to his essential hypertension but not due to his atrial fibrillation. A VA cardiology consultation opinion, dated in November 1996, indicated an impression of paroxysmal atrial fibrillation, focal nodule on the aorta valve, moderate and significant hypertensive disease and left cardiovascular accident in 1993. The examiner opined that the aortic valve did not cause atrial fibrillation. However, it was believed that the nodule was due to old healed endocarditis which could easily cause the embolic stroke in 1993. The origin of the nodule or the hypertension could not be medically dated, although the stress echo clearly showed hypertension to be chronic in nature. II. Applicable law and regulations In making a claim for service connection, the appellant has 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) (West 1991). That is, "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by the claim. Grottveitt v. Brown, 5 Vet.App. 91 (1993). For some factual issues, competent lay evidence may be sufficient; however, where the claim involves issues of medical fact, such as medical causation or diagnosis, competent medical evidence is required. Id. A well grounded claim for service connection requires evidence of 1) a current disability as provided by a medical diagnosis; 2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and 3) a nexus, or link, between the in- service disease or injury and the current disability as provided by competent medical evidence. Caluza v. Brown, 7 Vet.App. 498 (1995); see also 38 C.F.R. § 3.303 (1999). Hypertension or any other cardiovascular disease may be presumed to have been incurred in service, if the evidence shows that such disease became manifest to a degree of 10 percent within one year from the appellant's separation from active service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Congenital or developmental defects may not be service- connected because they are not injuries under VA law and regulations. 38 C.F.R. § 4.9 (1999). However, congenital or development defects may be service- connectable where a superimposed injury occurs during, or as a result of, active service. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990). Determination of the existence of a pre- existing condition must be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion. See Miller v. West, 11 Vet.App. 345, 348 (1998); Gahman v. West, 12 Vet.App. 406 (1999). Where a pre- service disability increases in severity during active service, a presumption arises that the disability has been aggravated during service. 38 C.F.R. § 3.306(a) (1998). Clear and unmistakable evidence is required to rebut this presumption. 38 C.F.R. § 3.306(b) (1998). However, where a disability merely undergoes a temporary worsening of symptoms and not a permanent increase in the actual disability, the aggravation may not be conceded. Id., see also Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991) (temporary or intermittent flare- ups during service of a pre- existing disease or disability is not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened.") In cases where service records are presumed destroyed, the Board has a heightened duty to explain its findings of fact and conclusions of law. O'Hare v. Derwinski, 1 Vet.App. 365 (1991). However, this heightened duty of review "does not lower the legal standard for proving a claim for service connection." Russo v. Brown, 9 Vet.App. 46, 51 (1996). For purposes of a well grounded analysis, the truthfulness of the lay statements of record must be presumed. See King v. Brown, 5 Vet.App. 19 (1993). Generally, a lay person "is competent to testify as to the symptoms experienced in service, but ... is not competent to opine as to a link between those symptoms and [the] present diagnosis." Dean v. Brown, 8 Vet. App. 449, 455 (1995) (citing Heuer v. Brown, 7 Vet. App. 379, 384 (1995). This is so because lay statements have probative value in describing any outward manifestations of a disease process or physical disability, but do not hold any probative value on questions involving medical diagnosis and etiology. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveitt, 5 Vet.App. at 93. III. Service connection - hypertension The appellant contends that his hypertension was first manifested by occasional high blood pressure readings, headaches and blackouts during service. He does not allege that he was treated or diagnosed with hypertension during service. Although his service medical records are unavailable, the Board presumes the truthfulness of his claimed symptoms during service. King, 5 Vet.App. 19 (1993). The available medical records first document a blood pressure reading of 142/88 in 1971. At that time, there was no diagnosis of hypertension noted. Cf. 38 C.F.R. § 4.104, Diagnostic Code 7101 (10 percent rating for hypertension warranted for diastolic pressure predominately 100 or more, or systolic pressure predominately 160 or more, or history of diastolic pressure predominately 100 or more requiring continuous control by medication). He was first diagnosed with hypertension by Dr. Bechtold in 1973 at which time he reported a history of "no knowledge of prior hypertension." There is no medical evidence showing that hypertension manifested during service or within the one year presumptive period after discharge from service. See 38 C.F.R. § 3.309 (1999). In support of his claim, the appellant has offered his own opinion that his hypertension was first manifested by his claimed high blood pressure readings in service. However, his lay statements, while competent to describe the manifestations of his hypertension over time, are not competent to speak to questions of medical diagnosis or etiology. Grottveitt, 5 Vet.App. at 93. As noted by a VA examiner, his claimed manifestation of occasional high blood pressure readings during service may have resulted from a variety of situational factors unrelated to a diagnosis of hypertension. The same examiner concluded that the appellant's hypertension could not be dated back to service. The appellant also indicates that Dr. Pride, who allegedly treated him for high blood pressure following service, told him that his claimed headaches and blackouts during service were a manifestation of his hypertension. His recollections of this opinion, in and of themselves, are insufficient to well ground his claim. See Warren v. Brown, 6 Vet.App. 4, 6 (1993) (lay accounts of physician statements are insufficient to well ground claims). As the appellant has failed to present competent medical evidence that his hypertension first manifested during service, or to a degree of 10 percent or more within a year from his discharge from service, or is otherwise linked to service, his claim must be denied as not well grounded. See Edenfield v. Brown, 8 Vet.App. 384 (1996) (en banc) (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). IV. Service connection - heart murmur As indicated above, the appellant concedes that his heart murmur had been detected prior to his entrance into active service. He reports that, at the time of his discharge from service, he was advised to undergo an examination due to his heart murmur. The available medical records first record a diagnosis of grade II systolic murmur by Dr. Bechtold in the 1970's. At that time, the appellant reported that his heart murmur had been asymptomatic throughout high school and active service. Opinions by both Dr. Bechtold, as well as an affiliated physician at that time, indicated impressions of a possible congenital ventricular septal defect or an innocent pulmonic murmur. Both examiners were of the opinion that such condition, however diagnosed, was hemodynamically insignificant. Current VA opinion indicates an impression of heart murmur secondary to the focal nodule in the aortic valve due to old healed endocarditis. In this case, there is simply no competent medical evidence of record which shows that the appellant's pre- existing systolic heart murmur underwent a permanent worsening during service either by way of aggravation or superimposed injury. Accordingly, not all of the Caluza elements are present, and the claim must be denied as not well grounded. See Edenfield, 8 Vet.App. 384 (1996). V. Service connection - blackouts The appellant lastly claims that he first manifested blackouts during his period of active service. Although his service medical records are unavailable, the Board nonetheless presumes the truthfulness of his claimed symptoms during service. King, 5 Vet.App. 19 (1993). He also claims continuity of symptomatology following service. The medical record first shows treatment for syncopal episodes many years following service. There is no medical evidence of a link, or nexus, between the claimed blackouts in service and his treatment for syncopal episodes many years thereafter. As such, the Board concludes that the claimed blackouts manifested during service did not represent the onset of chronic syncopal disability. Accordingly, the appellant's claim for service connection for blackouts must be denied as not well grounded. VI. Due Process The United States Court of Appeals for Veterans Claims has recently held that, absent the submission and establishment of a well grounded claim, VA cannot undertake to assist a claimant in developing facts pertinent to his/her claim. Morton v. West, 12 Vet.App. 477, 486 (1999). See Epps v. Gober, 126 F.3d 1464, 1467 (Fed.Cir. 1997), cert denied, ____ U.S. ____,118 S.Ct. 2348, 141 L.Ed.2d 718 (1998). However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his or her application. See Graves v. Brown, 8 Vet.App. 522 (1996). Review of the claims folder on appeal clearly shows that the appellant has been notified of the type of evidence needed to complete his application. In this respect, the RO has issued several Supplemental Statements of the Case which have notified the appellant of the reasons and basis for the denial of his claim. Although service medical records have been presumed destroyed, the RO has conducted alternative searches in an effort to verify the appellant's contentions of in- service treatment. Additionally, the RO has obtained all available private and VA treatment records. The Board discerns no additional sources of relevant information which may be obtainable concerning the present claim. Accordingly, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See generally Wood v. Derwinski, 1 Vet.App. 190 (1991) (VA "duty" is just what it states, a duty to assist, not a duty to prove a claim). (CONTINUED ON NEXT PAGE) ORDER Service connection for hypertension is denied as not well grounded. Service connection for a heart murmur is denied as not well grounded. Service connection for blackouts is denied as not well grounded. NANCY I. PHILLIPS Member, Board of Veterans' Appeals