Citation Nr: 0509997 Decision Date: 04/06/05 Archive Date: 04/15/05 DOCKET NO. 03-37 357 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for hypertension with hypertensive retinopathy claimed as secondary to service- connected diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran had active duty service from September 1966 to August 1970. This matter comes to the Board of Veterans' Appeals (Board) from August and October 2002 rating decisions of the RO, which denied service connection for hypertension with hypertensive retinopathy claimed as secondary to service- connected diabetes mellitus. FINDING OF FACT Hypertension with hypertensive retinopathy is as likely as not aggravated by the veteran's diabetes mellitus. CONCLUSION OF LAW Resolving the benefit of the doubt in the veteran's favor, hypertension with hypertensive retinopathy is aggravated by diabetes mellitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2004). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Neither hypertension nor hypertensive retinopathy were shown in service. The evidence is inconsistent regarding the onset of hypertension. It was first diagnosed, however, no later than in the 1970's. See, e.g., the May 1977 VA examination report. By July 1977 rating decision, the RO denied service connection for hypertensive vascular disease. The veteran was informed of that decision and of his appellate rights, but he did not appeal. In April 2002, the veteran filed a claim of entitlement to service connection for diabetes mellitus and related conditions. During an October 2002 VA medical examination, the examiner diagnosed adult onset diabetes mellitus and hypertension. The examiner opined that hypertension was unrelated to diabetes mellitus. The Board notes that the veteran's claims folder was not available to that examiner. During a separate October 2002 VA eye examination, bilateral hypertensive retinopathy was diagnosed. The examiner did not address the etiology the disorder. By October 2002 rating decision, the RO denied service connection for hypertension and hypertensive retinopathy. A February 2003 VA outpatient clinic note recorded a diagnosis of hypertension of undetermined cause, possibly due to diabetic nephropathy. Following a July 2003 VA medical examination, the examiner indicated that the veteran had hypertension since 1999. The examiner opined that hypertension was aggravated by diabetes mellitus. The examiner, however, indicated that the extent of such aggravation would be impossible to assess. The examiner also stated that diabetes mellitus is not the basic cause of his hypertension. The examiner noted that he had secured the advice of an endocrinologist in offering this opinion. Following a July 2003 VA eye examination, the examiner diagnosed mild bilateral hypertensive retinopathy but failed to address the etiology thereof. In an August 2003 addendum to the July 2003 VA examination reports, the examiner indicated that there was no evidence that diabetes mellitus caused hypertension. Diabetes mellitus did, however, aggravate hypertension. The degree to which diabetes mellitus aggravated the veteran's hypertension, however, would be difficult to assess. Law and Regulations Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Finally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for the degree to which a non- service-connected disability is aggravated by a service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Although the appellant may testify as to symptoms he perceives to be manifestations of disability, the question whether a chronic disability is currently present is one which requires skill in diagnosis, and questions involving diagnostic skills must be made by medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Discussion The veteran suffers from hypertension with hypertensive retinopathy, and he alleges that these disorders are related to his service-connected diabetes mellitus. Notably, while the competent evidence discussed above shows that hypertension and, by implication, hypertensive retinopathy are not caused by diabetes mellitus, the medical evidence unequivocally shows that hypertension and hypertensive retinopathy are aggravated by diabetes mellitus. The degree of aggravation cannot easily be determined. Nonetheless, the medical evidence of record is a sufficient basis upon which to grant service connection for hypertension with hypertensive retinopathy based on aggravation. Id.; 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert; Allen. The Board acknowledges that the RO denied service connection for hypertension with hypertensive retinopathy based on aggravation because the degree of aggravation is not readily ascertainable. Still, the veteran is entitled to the benefit of the doubt and to the most favorable outcome possible under the particular circumstances of his case and any applicable law. The mere fact that the extent of aggravation is difficult to measure is not a bar to service connection on the basis of aggravation. Direct service connection for hypertension with hypertensive retinopathy cannot be granted because the evidence reflects that these conditions did not manifest until years after service, and there is no demonstrable nexus between hypertension and/or hypertensive retinopathy and service. 38 C.F.R. § 3.303. As the decision herein is favorable, such a discussion of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) would be superfluous. ORDER Service connection for hypertension with hypertensive retinopathy is granted secondary to diabetes mellitus to the extent that these disorders are aggravated by diabetes mellitus. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs