Citation Nr: 1038608 Decision Date: 10/14/10 Archive Date: 10/22/10 DOCKET NO. 04-08 598 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension, to include as due to exposure to herbicides or as secondary to service- connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to March 1976, which included service from August 1970 to August 1972 in the Republic of Vietnam, where he is presumed by VA to have been exposed to herbicides. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision, in which, the RO, in pertinent part, denied service connection for hypertension. In May 2006 and February 2008, the case was remanded for additional notice and development. The case is now before the Board for further appellate consideration. FINDING OF FACT 1. Neither hypertension nor diabetes mellitus type II were present in service, or for many years thereafter, nor is there any probative medical evidence of a nexus between hypertension and service, to include as due to exposure to herbicides. 2. The probative medical evidence of record is against the Veteran's hypertension being caused, or aggravated, by his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as due to exposure to herbicides or as secondary to service- connected diabetes mellitus, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.313 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) However, VA's notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. Collectively, letters dated in April 2003, September 2007, February 2008, and September 2008 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and how a disability rating and an effective date is established consistent with the holdings in Pelegrini and Dingess. After the Veteran and his representative were afforded opportunity to respond to the notice identified above, the January 2010 supplemental statement of the case (SSOC) reflects readjudication of the service connection claim on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim decided on appeal. The Veteran's service treatment records, post-service VA treatment records, identified private treatment records, a private physician's statement, and various lay statements submitted by the Veteran and his representative, on his behalf, have been associated with the record. A May 2003 VA examination report with a September 2007 addendum involved a thorough interview with the Veteran and an opinion, along with a May 2010 Veterans Health Administration (VHA) opinion based on a thorough review of the claims file, have provided sufficient detail for the Board to make a decision on the claim decided on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that VA has substantially complied with the Board's previous remands with regard to the claim decided on appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (199). Thus, the Board finds that there is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim decided on appeal. II. Analysis The Veteran claims that his hypertension was caused or aggravated by his service-connected diabetes mellitus type II. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 C.F.R. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease first 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). Hypertension is presumed to be service connected if manifested to a compensable degree within one year after military discharge. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309(a). See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2010) (defining hypertension for purposes of that section as diastolic blood pressure predominantly 90 mm. or greater and isolated systolic hypertension as systolic blood pressure predominantly 160 mm. or greater with diastolic blood pressure of less than 90mm). Note 1 of that diagnostic code also provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id., Note 1. The evidence fails to show that the Veteran's hypertension was manifested to a compensable degree within one year after military discharge. Under 38 C.F.R. § 3.310 (which was revised effective in October 2006), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. Such permits a grant of service connection not only for disability caused by a service- connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Type II diabetes mellitus is a disease for which VA has determined that presumptive service connection based on exposure to herbicides in Vietnam is warranted. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). In the June 2003 rating decision, the subject of this appeal, the RO granted service connection for type II diabetes mellitus on a presumptive basis due to exposure to herbicides, effective February 19, 2003. Hypertension is not one of the diseases for which VA has determined that presumptive service connection based on exposure to herbicides used in Vietnam is warranted. See 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010); see also 72 Fed. Reg. 32,345-32,407 (June 12, 2007); 61 Fed. Reg. 57,586-57,589 (Nov. 7, 1996); and 59 Fed. Reg. 341-46 (Jan. 4, 1994). Therefore, service connection may not be granted for hypertension on the basis of the presumptive regulatory provisions just discussed. In the absence of a diagnosed disease for which the presumption applies, 38 C.F.R. § 3.307(a)(6)(iii) is not applicable, and the Veteran's claim of service connection for hypertension can only be addressed on a direct or a secondary service connection basis in this decision. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Applying the above statutory and regulatory provisions to the evidence of record, the Board finds that the preponderance of the evidence is against service connection for hypertension, on a direct, presumptive or secondary basis. The service treatment records reflect that the Veteran's blood pressure readings on his September 1969 entrance examination and on his February 1976 separation examination reports were 118/72 and 130/90, respectively. No other readings were noted in his service treatment records. The post-service treatment records from the Family Healthcare Center-Danville reflect that, during his initial visit in February 1998, the Veteran gave a history of having been told that his blood pressure frequently had been high though he had never been treated for it. On examination, the Veteran's blood pressure reading initially was 158/104, and later was 154/102. He was diagnosed with hypertension and prescribed atenolol 50 mg/day. At a March 1998 follow-up, his blood pressure reading was 138/90. The assessment was hypertension, adequately controlled on atenolol. When seen in August 1998, the Veteran's non-fasting blood sugar was 161 and his blood pressure reading was 140/100. The Veteran stated that he had never had his prescription for atenolol filled. In February 1999, his blood pressure reading was 144/90 and the assessment was hypertension, stable on current medications. Blood readings between June 1999 and December 2001 were: 128/86, 124/84, 146/84, 134/84, 124/84, 148/86, 144/84, 130/70, and 148/98. A January 10, 2002 treatment note reveals that recent labs had shown an elevated blood sugar with a random sugar of 158. The Veteran indicated that there was a positive family history for diabetes. His blood pressure reading was 136/90. The Veteran was diagnosed with non-insulin dependent diabetes mellitus, new onset, and started on a 1600- calorie ADA diet with a goal of a 20-pound weight loss over the next 6 months. Hypertension was noted as borderline control. During a May 2003 VA examination, the Veteran's blood pressure readings were 160/100 (sitting), 164/102 (standing), and 156/96 (lying down). His glucose was measured as 124 and his A1c was noted to be 7.1. The diagnoses were type II diabetes mellitus and hypertension. The examiner opined that the Veteran's hypertension more likely than not was not caused by his diabetes, as he had been treated for hypertension for years prior to being diagnosed with diabetes. In an October 2003 statement, M. M., M.D., reiterated that the Veteran was initially seen for hypertension on February 5, 1998; that an echocardiogram (ECHO) performed the next day was normal; and that the Veteran was prescribed atenolol for hypertension. Over the ensuing months and years, the Veteran continued to be seen for hypertension, which was treated with atenolol and later hydrochlorothiazide. In January 2002, his antihypertensive drug was change to Accuretic, a combination of an ACE inhibitor, Accupril, and hydrochlorothiazide. The Accupril component was discontinued when the Veteran developed angioneurotic edema and was later placed on Diovan for his hypertension. The first description of the Veteran having type II diabetes mellitus was at a February 5, 2002 visit. A June 3, 2002 blood sugar result was 131. A diabetic diet, appropriate weight loss, and a medication, Glucophage, were recommended. The Veteran lost weight from a high of 200 pounds in December 2001 to his most recent weight of 185-187 pounds. In summary, the Veteran presented in February 1998 with hypertension and he developed type II diabetes mellitus in February 2002, for which he continues to be followed. In a September 2007 addendum, the May 2003 VA examiner opined that the Veteran's hypertension was not caused by his diabetes, nor is it aggravated by his diabetes. The rationale was that the Veteran's hypertension preceded his diabetes by more than ten years; that his diabetes was well controlled; and that there was no evidence of diabetic nephropathy that would cause his hypertension. Additional treatment records received since the September 2007 addendum opinion was rendered show blood pressure readings as high as 156/100 and 168/106. In April 2010, the Board sought a VHA opinion to resolve the matter on appeal. In a May 2010 opinion, the VA cardiologist noted that the entrance examination blood pressure reading was 118/72, which is normal, and that the separation examination blood pressure reading was 130/90, which is in the Stage I hypertensive range but it is not possible to establish a diagnosis of hypertension based on a single reading. The guidelines recommend the average of two or more seated BP readings at two or more office visits, to establish a diagnosis of hypertension. Thus, the VA cardiologist opined that, as the medical record did not establish a diagnosis of hypertension at the time of separation or prior to March 5, 1977, the record does not establish that the Veteran's hypertension originated during service. The Veteran was clearly hypertensive in 1998, when seen at the Danville Family Healthcare Center. However, the exact onset of hypertension cannot be established from the existing records, but is no later than 1998. The VHA specialist added that a 2007 Institute of Medicine report concluded that there was limited or suggestive evidence of an association between hypertension and exposure to Agent Orange. Limited or suggested evidence was defined as "epidemiologic evidence suggests an association between exposure to herbicides and the outcome (hypertension), but a firm conclusion is limited because chance bias, and confounding could not be ruled out with confidence." The VA cardiologist added that essential hypertension is highly prevalent in the U. S. middle-aged population. As such, the VHA specialist interpreted the existing evidence as indicating that it is less likely that Agent Orange (herbicide) exposure during service caused the subsequent development of hypertension, and more likely that the Veteran would have developed hypertension regardless of herbicide exposure. Thus, the Board finds that the preponderance of the evidence is against the Veteran's hypertension having its onset in service or within one year of military discharge and being due to exposure to herbicides. Finally, the VHA opinion discussed the relationship, if any, between diabetes mellitus and hypertension. The cardiologist stated that diabetes mellitus is not a direct cause of hypertension. Kidney damage (diabetic nephropathy) from diabetes can result in hypertension. However, in the Veteran's case, the evidence shows that his hypertension preceded the onset of diabetes; thus, it is unlikely that the Veteran's diabetes mellitus type II caused his hypertension. He added that diabetes itself does not worsen hypertension, but diabetic nephropathy (kidney damage due to diabetes) can result in worsening of hypertension compared to patients without diabetic nephropathy. Evidence of diabetic nephropathy would be abnormal protein in the urine (microalbuminuria or proteinuria), along with evidence of impaired renal function (depressed glomerular filtration rate). The VA cardiologist was unable to find evidence in the record of diabetic nephropathy, and on the basis of that, concluded that it is unlikely that the Veteran's diabetes has worsened the progress of his hypertension to date. The VHA specialist added that, if the Veteran can establish or later develops evidence of diabetic nephropathy, the issue would need to be readdressed. Thus, the Board also finds that the preponderance of the evidence is against the Veteran's diabetes mellitus causing, or aggravating, his hypertension beyond the natural progress of the disease. The Board accords great probative value to the May 2010 VHA specialist's comments and opinion, based as they were on a review of the Veteran's claims file and a detailed review of pertinent aspects of his documented medical history, and considers them to be of primary importance in the disposition of this appeal. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Significantly, neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any medical opinion that supports a finding of entitlement to service connection for hypertension on any basis. In addition to the medical evidence, the Board has considered the Veteran's and his representative's written assertions; however, none of this evidence provides a basis for allowance of the claim. Matters of diagnosis and etiology are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the Board finds that the claim for service connection must be denied. In reaching each conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for hypertension, to include as due to exposure to herbicides or as secondary to service-connected diabetes mellitus, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs