Citation Nr: 1308868 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09-35 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for hypertension, to include as due to service-connected diabetes mellitus, based on a reopened claim therefor. ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, denying a claim to reopen for service connection for hypertension on the basis that new and material evidence had not been received with which to reopen a previously denied claim. The Board in May 2011 determined that new and material evidence had in fact been received by VA to reopen the claim and remanded the matter to the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development of that reopened claim could be undertaken. Following the AMC's completion of the actions sought, the case was returned to the Board for further review. Pursuant to 38 U.S.C.A. § 7109 (West 2002), the Board in August 2012 referred this matter for a medical expert opinion from a VA specialist employed by the VA's Veterans Health Administration (VHA). That opinion was received by the Board in October 2012, and following additional follow-up, an addendum to the earlier opinion was received by the Board in January 2013. Inasmuch as the referenced opinions are favorable to the Veteran's claim and warrant a grant of the requested benefit, copies of those opinions were not provided to the Veteran. FINDING OF FACT The evidence is at least in relative equipoise that the Veteran's hypertension is aggravated by his service-connected diabetes mellitus, type II. CONCLUSION OF LAW Hypertension is aggravated by service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for hypertension, which represents a complete grant of the Veteran's appeal as to that issue alone. Therefore, no discussion of the VA's duties to notify and assist is necessary. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service, or proximately due to or the result of existing service-connected disability. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury and secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). An amendment to 38 C.F.R. § 3.310, effective October 10, 2006, was enacted, which essentially codifies Allen by adding language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. See 71 Fed. Reg. 52744 (2006). The record indicates that service connection for diabetes mellitus, type II, was established by RO action in June 2005. The Veteran alleges that his service-connected diabetes mellitus has either caused or aggravated his hypertension and review of the medical evidence presented, to include specifically the report of a VHA medical expert opinion of October 2012, with its January 2013 addendum, supports his allegation. The record is in conflict as to whether the diagnosis of the Veteran's diabetes mellitus preceded the diagnosis of hypertension. The Veteran, who self-reports he is without medical training, states that some abnormal blood pressure readings were present at the time of surgery in the 1980s, while the clinical and opinion evidence on file dates borderline hypertension and possible hypoglycemic episodes and borderline glucose levels to 1993, with initial treatment of elevated blood pressure with Diovan beginning in May 2000. However, the Board need not address the conflicting evidence as regarding a direct, causal relationship between the entities in question, or for that matter, the service origination of the Veteran's hypertension. Rather, the evidence of record in this case permits the Board to conclude reasonably that the Veteran's service-connected diabetes mellitus has resulted in an aggravation of his hypertension. The question of aggravation is addressed by a VA nurse practitioner on a VA medical examination conducted in May 2011. At that time, the VA examiner opined, in pertinent part, that it was at least as likely as not that hypertension was aggravated by diabetes mellitus, citing a worsening of hypertension requiring increased dosages of medication following the diagnosis of diabetes mellitus. Clarifying medical opinion was thereafter sought by the AMC from a VA cardiologist, whose opinion it was in April 2012 was limited to the question of a direct causal relationship between diabetes and hypertension. This prompted the Board to seek a medical expert opinion which it received in October 2012, with an addendum thereto occurring in January 2013. That VHA expert determined that, generally, diabetes mellitus, type II, had the propensity to aggravate and accelerate hypertension. In his 2013 addendum, the expert based on the facts of this case concluded that, whereas the Veteran's hypertension was mild in severity prior to the diagnosis of his diabetes mellitus, following the onset of diabetes mellitus, there were dosage increases and the addition of other anti-hypertensive medications suggestive of a worsening of the Veteran's hypertensive state. Thus, the expert concluded that it was at least as likely as not the Veteran's hypertension had been aggravated by his diabetes mellitus. On the basis of the foregoing, any and all reasonable doubt is resolved in the Veteran's favor, and service connection for hypertension, as aggravated by service-connected diabetes mellitus, type II, is granted. As noted above, VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). The rating activity, however, is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Because the Board does not assign ratings in the first instance, 38 C.F.R. § 3.310(b) is interpreted to permit the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. ORDER Service connection for hypertension, as aggravated by service-connected diabetes mellitus, type II, is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs