Citation Nr: 0809916 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-19 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service connected diabetes mellitus. ATTORNEY FOR THE BOARD B. Morton, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to January 1970. This matter is before the Board of Veterans' Appeals (Board) from an August 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, in relevant part, denied service connection for hypertension, to include as secondary to service connected diabetes mellitus. The RO issued a notice of the decision in August 2004, and the veteran timely filed a Notice of Disagreement (NOD) in September 2004. Subsequently, in April 2005 the RO provided a Statement of the Case (SOC), and thereafter, in June 2005, the veteran timely filed a substantive appeal. The RO provided a Supplemental Statement of the Case (SSOC) in July 2007. The veteran did not request a hearing on this matter. On appeal in October 2007, the Board, in relevant part, remanded the issue of service connection for hypertension, to include as secondary to service connected diabetes, directing the Appeals Management Center (AMC)/RO to obtain an Addendum to an April 2004 VA examination to ascertain the likely etiology of the veteran's current hypertension and readjudicate this claim. The AMC/RO issued an SSOC in November 2007. The Board finds that the AMC/RO complied with the October 2007 Remand directive, and therefore the Board may proceed with its review of the appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of his claim and has notified him of the information and evidence necessary to substantiate the claim addressed in this decision; of the information VA failed to provide in a timely fashion, any resulting prejudice has been rebutted. 2. The veteran is service connected for diabetes mellitus, and he currently has hypertension; the evidence of record does not suggest that he had hypertension during service or until many years thereafter, nor does it show a nexus between current hypertension and service or that the veteran's service connected diabetes mellitus caused or aggravated his hypertension. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein; the veteran's hypertension is not proximately due to or the result of his service-connected diabetes mellitus, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. a. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the May 2004 and October 2007 letters sent to the veteran by the RO adequately apprised him of the information and evidence needed to substantiate the claim. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Sanders v. Nicholson, 487 F.3d 881, 886 (Fed. Cir. 2007) (outlining VCAA notice requirements); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (same). Additionally, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id., at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. The May 2004 and October 2007 letters from the RO satisfy these mandates. Both letters informed the veteran about the type of evidence needed to support his secondary service connection claim, namely, proof of: (a) a current disorder; (b) a service connected disability; and (c) a relationship between the service connected disability and the current disorder, and the May 2004 correspondence informed the veteran of the type of evidence required to substantiate a direct service connection claim, namely proof of: (a) an injury in military service or disease that began in or was made worse during military service, or an event in service causing injury or disease; (b) a current physical or mental disability; and (c) a relationship between the current disability and an injury, disease or event in service. They clearly disclosed VA's duty to obtain certain evidence for the veteran, such as medical records, employment records and records held by any Federal agency, provided the veteran gave consent and supplied enough information to enable their attainment, and made clear that although VA could assist the veteran in obtaining these records, he carried the ultimate burden of ensuring that VA received all such records. These letters additionally apprised the veteran that VA would obtain a VA medical opinion for him, and the October 2007 correspondence apprised him of the Dingess elements relating to calculation of disability ratings and assignment of effective dates. The May 2004 letter also specifically asked the veteran to provide VA with any other supporting evidence or information in his possession. The Board thus finds that the veteran was effectively informed to submit all relevant evidence in his possession, and that he received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did not provide all of such notice to the veteran prior to the August 2004 RO decision that is the subject of this appeal in its May 2004 and October 2007 letters. Where such a timing error occurred, the Board must presume that the error was prejudicial, and VA bears the burden of rebutting said presumption. Sanders, 487 F.3d at 886, 889 (recognizing that "VCAA notice errors are reviewed under a prejudicial error rule" and holding that "all VCAA notice errors are presumed prejudicial and . . . VA has the burden of rebutting this presumption"); see also Mayfield v. Nicholson, 19 Vet. App. 103, 111-16 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Sanders, the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Veterans Court (Court of Appeals for Veterans Claims), the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide any pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. An error "whether procedural or substantive, is prejudicial when [it] affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield, supra, at 116; accord Sanders, supra, at 891 ("this opinion does not . . . change the rule that reversal requires the essential fairness of the adjudication to have been affected"). That is, "the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication." Mayfield, supra; accord Sanders, supra. "[A]n error is not prejudicial when [it] did not affect 'the essential fairness of the [adjudication],'" see Mayfield, supra, at 121, and non- prejudicial error may be proven by a showing that "the purpose of [VCAA] notice was not frustrated, e.g., by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the [defective] notice what was needed, or (3) that a benefit could not have been awarded as a matter of law." Sanders, supra, at 889; accord Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (determining that no prejudicial error to veteran resulted in defective VCAA notice when the veteran, through his counsel, displayed actual knowledge of the information and evidence necessary to substantiate his claim). Accordingly, "there could be no prejudice if the purpose behind the notice has been satisfied . . . that is, affording a claimant a meaningful opportunity to participate effectively in the processing of [the] claim. . . ." Mayfield, supra, at 128. The Board finds that any presumed prejudice to the veteran as a result of the timing of the VCAA notice has been rebutted. Specifically, the RO cured this timing defect by providing complete VCAA notice together with readjudication of the claim, as demonstrated by the November 2007 SSOC. Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and readjudicating the claim in the form of an SOC to cure timing of notification defect). The veteran thus was not prejudiced by any defect in timing, as "the purpose behind the notice has been satisfied . . . that is, affording a claimant a meaningful opportunity to participate effectively in the processing of [the] claim. . . ." Mayfield, 19 Vet. App. at 128. b. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the veteran of its duty to assist in obtaining records and supportive evidence, and the veteran in fact did receive an April 2004 VA examination and a November 2007 Addendum to this examination, which were thorough in nature and adequate for the purposes of deciding this claim. The Board finds that the medical evidence of record is sufficient to resolve this appeal, and the VA has no further duty to provide an examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran, and thus, no additional assistance or notification was required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. at 392-94. II. Law & Regulations a. Service Connection The Court has held that "[f]or service connection to be awarded, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury." Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); accord Disabled Am. Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1318 (Fed. Cir. 2005); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If the veteran fails to demonstrate any one element, denial of service connection will result. Disabled Am. Veterans, supra; Coburn, supra. With respect to the "current disability" prong, the Court has recognized that, "[i]n the absence of proof of a present disability there can be no valid claim" of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service-connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"); see also Chelte v. Brown, 10 Vet. App. 268, 271, 272 (1997) (holding that the veteran's claim was not well grounded when the evidence "establishe[d] only that the veteran had a [disability] in the past, not that he has a current disability"). Turning to the second, "incurrence in or aggravation by service" prong, the Court has expressed that "[s]ervice connection for VA disability compensation . . . will be awarded to a veteran who served on active duty during a period of war . . . for any disease or injury that was incurred in or aggravated by" such service. Caluza, 7 Vet. App. at 505. VA may grant service connection, despite a diagnosis after discharge, when all the evidence, including that pertinent to service, establishes that the veteran incurred the disease during service. See 38 C.F.R. § 3.303(d); accord Caluza, supra ("When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact 'incurred' during the veteran's service, or by evidence that a presumption period applied"). With respect to the third, "nexus" prong, the veteran must demonstrate through medical evidence that "a causal relationship" exists between the present disability and an in-service event. Shedden, 381 F.3d at 1167. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence must demonstrate that the claim is plausible. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Mere lay assertions of medical status do not constitute competent medical evidence. Moray v. Brown, 5 Vet. App. 211, 214 (1993) ("lay persons are not competent to offer medical opinions"). Alternatively, a veteran can establish a nexus between service and the current disability by offering medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117, 120 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). b. Presumptive Service Connection Some diseases that become manifest after service "will be considered to have been incurred in or aggravated by service . . . even though there is no evidence of such disease during the period of service," as long as these diseases become manifest to a compensable degree within the applicable regulatory time periods. 38 C.F.R. § 3.307(a); see 38 C.F.R. § 3.309. With respect to chronic diseases, such a disease "must have become manifest to a degree of 10 percent or more within 1 year . . . from the date of separation from service. . . ." 38 C.F.R. § 3.307(a)(3). Only those diseases enumerated in 38 C.F.R. § 3.309(a) qualify as "chronic" for the purposes of the regulation, and those include hypertension, among others. 38 C.F.R. §§ 3.307(a), 3.309(a). Additionally, the veteran must have served 90 days or more during a war period or after December 31, 1946. 38 C.F.R. § 3.307(a)(1). c. Secondary Service Connection Pursuant to 38 C.F.R. § 3.310(a), a "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected." See Evans v. West, 12 Vet. App. 22, 29 (1998) (noting requirements for establishing service connection on a secondary basis). Thus, in order to establish a secondary service connection claim, the veteran must show: (1) the existence of a current (secondary) disability; (2) the existence of a service- connected disability; and (3) evidence that the service- connected disability proximately caused the secondary disability. 38 C.F.R. § 3.310(a). A veteran may also establish secondary service connection by demonstrating that his current (secondary) disability became aggravated or worsened by the already service-connected disease. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that "when aggravation of a veteran's non-service-connected [secondary] condition is proximately due to or the result of a service- connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation"); see Libertine v. Brown 9 Vet. App. 521, 522 (1996) ("Additional disability resulting from the aggravation of a non-service-connected [secondary] condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a)"). If a veteran succeeds in establishing service connection for a secondary condition, "the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310(a). The Board acknowledges that VA recently amended 38 C.F.R. § 3.310, effective October 10, 2006. This amendment added the following provision to this regulation: "(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice- connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) 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." 38 C.F.R. § 3.310 (2006). VA amended § 3.310 "because of a court decision [Allen v. Brown, 7 Vet. App. 439 (1995)] that clarified the circumstances under which a veteran may be compensated for an increase in the severity of an otherwise nonservice-connected [disability,] which is caused by aggravation from a service-connected [disability]." 71 Fed. Reg. 52744 (Sept. 7, 2006). Thus, "[t]he intended effect of this amendment is to conform VA regulations to the [Allen] court's decision." 71 Fed. Reg. 52744 (Sept. 7, 2006). Because this amendment is in the nature of a clarifying revision, rather than a substantive change, and because VA clearly expressed its intent to conform this regulation to already-existing case law, the Board will employ the same analysis as it has since Allen and consistent with the principles contained therein, as outlined above. d. Standard of Proof 38 U.S.C.A. § 5107 sets forth the standard of proof applied in decisions on claims for veterans' benefits. A veteran will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A claim will be denied only if a preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). III. Analysis a. Factual Background The veteran's January 1968 Report of Medical Examination for Induction contains a normal clinical assessment of the heart, lungs and chest, and the veteran had a blood pressure of 108/70. The veteran's December 1969 Report of Medical Examination for Separation likewise contains a normal clinical assessment of the heart, lungs and chest. At this time, he had a blood pressure of 102/60. In the accompanying Report of Medical History, the veteran indicated that he had not experienced high or low blood pressure. May 2002 and December 2002 VA medical records indicate that the veteran had respective blood pressures of 148/88 and 118/90. January 2004 and August 2004 VA medical notes indicate that the veteran had been diagnosed with hypertension. An April 2004 VA examination report, where the clinician reviewed the claims file, indicates that the veteran had hypertension, diagnosed just within the previous year. At this time, the veteran's blood pressure was not under adequate control. In September 2004 and August 2007 the veteran submitted various articles from Internet sources, which indicate generally that individuals with diabetes mellitus often times have hypertension as well. In a November 2007 Addendum to the April 2004 VA medical examination report, the VA clinician indicated that she had reviewed the entire claims file, including the Board's October 2007 Remand Order. She listed the veteran's blood pressure readings during service (from January 1968) and post-service (to April 2004), and noted that the veteran had submitted various Internet print-outs suggesting a link between hypertension and diabetes. The VA examiner noted that these Internet articles "indicate[] the 2 diseases are often seen in the same people but do[] not state that one causes the other." From current, documented and reliable medical literature, the examiner noted that risk factors for essential hypertension included race, increased sodium intake, excessive alcohol consumption, obesity and hyperlipidemia. For secondary hypertension, the risk factors included primary renal disease, oral contraceptives, pheochromocytoma, primary hyperaldosdteronism, coarctation of the aorta, renovascular disease, Cushing's syndrome, hyperthyroidism, hypothyroidism and hyperparathyroidism. The clinician also reviewed results of the veteran's recent urine and blood testing. Based on these data, the examiner determined that the veteran's current hypertension "did not have its origin in service. There is no evidence of hypertension in the service medical records." As for whether the veteran incurred hypertension within one year post-service, the examiner observed that the claims file did not contain any medical records from this time period, but noted that "the veteran's blood pressure was normal up to 2000. It is highly unlikely that the veteran's hypertension had its origin in the 1 year time period after service . . . ." The examiner also concluded that the veteran's diabetes mellitus did not cause his hypertension, but instead found that the veteran's essential hypertension "is most likely caused by or a result of his obesity." Finally, with respect to aggravation, the VA examiner stated that "[d]iabetes can affect renal function and cause renovascular hypertension. The veteran's renal function is normal. There is no evidence the diabetes has aggr[a]vated the hypertension." b. Discussion The Board concludes that the evidence preponderates against the veteran's claim. In particular, the veteran's service medical records are negative of any complaints of, treatment for, or diagnosis of hypertension, but instead reflect normal blood pressures of 108/70 in January 1968 and 102/60 in December 1969. See Dorland's Illustrated Medical Dictionary 889 (30th ed. 2003) (indicating that hypertension present with readings ranging from 140/90 to 200/110) . In addition, the medical evidence of record does not indicate that the veteran had a diagnosis of hypertension within one year after his 1970 discharge from service, but instead, reflects that he received a diagnosis many decades post service in 2000 or 2002. Such evidence weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Further, the only medical nexus opinion of record pertaining specifically to this veteran, namely the November 2007 VA opinion, preponderates against the claim, as the clinician determined, based on a review of the claims file as well as the nature of the veteran's hypertension and medical literature, that his service connected diabetes mellitus neither caused nor aggravated his current hypertension. The Board acknowledges that the veteran has submitted articles from Internet sources, which suggest that persons with diabetes mellitus also have hypertension. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998) (emphasis added); see also Wallin v. West, 11 Vet. App. 509, 513-14 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); accord Mattern v. West, 12 Vet. App. 222, 228 (1999). In this case, however, the text evidence submitted by the veteran is not accompanied by any supportive medical opinion from a medical professional. Additionally, it is generic in nature, and fails to demonstrate the relationship between this veteran's hypertension and his diabetes mellitus. For these reasons, the Board must find that the text evidence submitted by the veteran does not contain the specificity to constitute competent evidence of a claimed medical nexus. Sacks, 11 Vet. App. at 317 (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996). IV. Conclusion For the reasons stated above, the Board finds that service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply to the instant case. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert, 1 Vet. App. at 56. ORDER Service connection for hypertension, to include as secondary to service connected diabetes mellitus, is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs