Citation Nr: 0810351 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-41 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for hypertension, to include as being secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from January 1962 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). FINDING OF FACT The veteran's current hypertension was not manifested until many years after service and is not shown by the evidence of record to be related to his active duty service, or causally related to or otherwise aggravated by his service-connected disabilities. CONCLUSION OF LAW Hypertension was not incurred in, or aggravated by, active military service, may not be presumed to have been so incurred, nor is it proximately due to a service-connected disorder. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Prior to the initial adjudication of the issue on appeal herein, the RO's February 2005 letter advised the veteran of the foregoing elements of the notice requirements as they related to his claim for service connection for hypertension. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re-adjudication of the claim). The Board notes that the RO's February 2005 letter failed to notify the appellant of effective dates and the assignment of disability evaluations. However, there is no prejudice to the appellant because the claim for entitlement to service connection has been denied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In addition, the duty to assist the appellant has also been satisfied in this case. The RO has obtained the veteran's service medical records, VA medical treatment records, and his identified private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the RO has provided the veteran with a VA examination for the purpose of determining the etiology of his current hypertension. Finally, there is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including hypertension, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Historically, the veteran service on active duty in the Army from January 1962 to July 1964. In January 2005, the veteran filed his present claim seeking entitlement to service connection for hypertension. He attributes this condition to his service-connected diabetes mellitus, type II, which has been rated by the RO as 10 percent disabling since August 2002. According to VA's SCHEDULE FOR RATING DISABILITIES, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. Part 4, § 4.104, Diagnostic Code 7101 Note (1) (2007). A review of the evidence of record reveals that the veteran first sought treatment for and was diagnosed with hypertension in April 2003. However, a review of post service treatment reports prior to that time reflect elevated blood pressure readings beginning in 2000. Specifically, the following blood pressure readings were noted: 148/80 in July 2000; 170/88 in December 2000; 168/78 in January 2001; 158/86, 162/78 and 156/88 in May 2001; and 176/86 in January 2003. The evidence of record does not support the claim of service connection for hypertension on a direct basis. The veteran's service medical records are negative for this disorder, and there is no evidence that this disorder was incurred in or aggravated by his military service, to include as due to exposure to herbicide agents, including Agent Orange. In making this determination, the Board points out that the veteran was first diagnosed with hypertension in 2003, over thirty-seven years after his discharge from the service. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The Board also finds that the evidence of record does not support the conclusion that the veteran's current hypertension was caused or aggravated by his service- connected diabetes mellitus, type II. VA medical examiners, in December 2003 and in April 2005, opined that the veteran's current hypertension was not related to his service-connected diabetes mellitus. The VA examiner in December 2003 indicated that the veteran's claims folder had been reviewed. He opined that the veteran's hypertension and renal insufficiency were not related to his diabetes mellitus, type II. The VA examiner in April 2005 also indicated that the veteran's claims folder was reviewed prior to his examination. The examination report also included a history of the veteran's diabetes mellitus and hypertension. Based upon his review of the claims folder, and physical examination of the veteran, the VA examiner noted the following as a diagnosis: Systemic hypertension under control with Benicar. One elevated blood pressure reading does not connote poor control. Patient has had stable blood pressure readings on review of private medical records from Marshall Family Medical Group in Sheboygan. The patient's systemic hypertension is not related to diabetes. The patient's renal insufficiency is related to his hypertension rather than diabetes due to the fact that his diabetes is under good control, and 90% of the cause of hypertension is noted to be essential hypertension that there is no etiology found. The majority of those cases are related to genetics and family history. Furthermore, this patient's diabetes mellitus does not aggravate his hypertension beyond normal control due to the fact that his diabetes is under excellent control, and he is on no oral hypoglycemics. Further contributing factors for onset of hypertension include dyslipidemia and obesity, both of which this patient has. As such, systemic hypertension is not related to diabetes mellitus nor is it aggravated by diabetes mellitus. Standing in contrast to these opinions, is the opinion offered herein by the veteran's private physician, S. Staehling, M.D. In an April 2006 statement, Dr. Staehling opined that the veteran's current hypertension was related to his diabetes mellitus. A follow-up statement from Dr. Staehling, received in August 2006, included a detailed treatment summary of the veteran's hypertension and diabetes mellitus. In weighing the evidence of record, the Board finds the April 2005 VA examiner's opinion to be the most probative evidence of record as to the issue of whether the veteran's current hypertension has been aggravated by his service-connected diabetes mellitus, type II. In making this determination, the Board notes that both the VA examiners and Dr. Staehling in August 2006 provided medical background information concerning the veteran. However, only the VA examiner in April 2005 provided a rationale, based on the pertinent background information, in support of his medical opinion. Specifically, the VA examiner noted that the veteran's hypertension had not been aggravated by his diabetes mellitus "due to the fact that his diabetes is under excellent control, and he is on no oral hypoglycemics." As the VA examiner in 2003, and the private examiner failed to provide a rationale for their opinions, the Board does not find that their opinions are competent medical evidence. The veteran's statements can provide competent evidence about what he experienced; for example, his statements are competent evidence as to what symptoms he experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the veteran's statements, as a lay person, are not competent evidence to assert that a relationship exists between his hypertension and his service- connected disabilities, or to otherwise assert medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In the absence of competent medical evidence that hypertension is related to the veteran's military service or was caused or aggravated by a service-connected disability, the preponderance of the evidence is against the veteran's claim for service connection for hypertension. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension, to include as being as secondary to a service-connected diabetes mellitus, type II, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs