Citation Nr: 0810406 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-26 597 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from October 1965 to October 1969. The present matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision in which the RO denied the veteran's claim of service connection for hypertension, to include as secondary to service-connected diabetes mellitus. In May 2004, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2004, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in June 2004. In July 2005, the appellant testified during a video conference Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In September 2005, the veteran submitted additional evidence directly to the Board, and waived his right to have the RO initially consider it. In February 2006, the Board remanded this matter to the RO (via the Appeals Management Center (AMC), in Washington, D.C) for further action, to include obtaining a supplemental medical opinion. After accomplishing the requested action, the RO/AMC continued the denial of the claim on appeal (as reflected in a May 2006 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Hypertension was not present in service, or for many years thereafter, and there is no medical evidence of a nexus between any such current disability and service. 3. The only medical opinion on the question of a medical relationship between hypertension and service and between hypertension and service-connected diabetes mellitus weighs against the claim. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to the veteran's service-connected diabetes mellitus, are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 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(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include AMC). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an October 2003 pre-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claim for service connection for hypertension, as well as what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. A May 2004 letter notified the appellant to advise VA of and to submit any further evidence that is relevant to the claim. The June 2004 SOC set forth the criteria to substantiate a secondary service connection claim. After issuance of each notice described above, and opportunity for the appellant to respond, the May 2006 SSOC reflects readjudication of the claim. Hence, the appellant is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also, Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect). The Board also notes that the May 2006 SSOC generally informed the appellant how disability ratings and effective dates are assigned, as well as the type of evidence that impacts those determinations. However, the timing of this notice-at the time of, and not prior to, the last adjudication of the claim-is not shown to prejudice the veteran. Because in the decision herein, the Board denies service connection for the claimed disability, no disability rating or effective date is being, or is to be, assigned. Hence, there is no possibility of prejudice to the appellant under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent evidence associated with the claims file consists of the veteran's service medical records; post-service private medical records; outpatient treatment records from the VA Medical Center (VAMC) in Charleston, South Carolina; as well as reports of a VA examination and opinion. Also of record and considered in connection with this claim is the transcript of the July 2005 Board hearing as well as various written statements provided by the veteran and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the appellant has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. 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 this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). If a chronic disease, such as hypertension or diabetes mellitus, becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Further, under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2007) (emphasis added). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). After a full review of the record, including the medical evidence, the veteran's hearing testimony and statements by the veteran and his representative, the Board finds that service connection for hypertension, to include as secondary to his service-connected diabetes mellitus, is not warranted. Initially, the Board notes that there are no clinical findings or diagnoses of hypertension during service or for many years thereafter. Service medical records reflect no complaint, finding, or diagnosis of hypertension. On the veteran's October 1965 enlistment examination report, his blood pressure reading was 126/80, which is normal. To warrant a diagnosis of hypertension for VA compensation purposes, the veteran must meet the criteria delineated in 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2007) (defining hypertensive vascular disease or 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 90 mm.). His vascular system was noted to be normal. The veteran's blood pressure reading on his September 1969 separation examination report was 110/76, which does not fit the VA definition of hypertensive vascular disease. The vascular system also was assessed as normal on separation examination. There also is no evidence of hypertension within the one-year presumptive period for chronic diseases, or for many years after service. During his Board hearing, the veteran testified that he was first treated for hypertension at the Charleston VAMC in October 2003. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Although the veteran testified that a doctor told him his hypertension this is secondary to his diabetes, there is no such medical opinion in the private medical treatment records dated from July 1999 to August 2003. None of the recorded blood pressure readings in these private records reach the level of the VA definition of hypertension cited above, but for a reading of 160/90 in October 2000. Hypertension also was listed as one of the veteran's medical conditions in private records dated in June 2002, May 2003, and July 2003. VA medical records dated from September 2003 to February 2006 show the veteran's blood pressure well controlled. A VA doctor's notation in March 2005 suggested that any loss of control regarding the veteran's hypertension would be due to his hyperthyroid. The Board finds probative the opinion of the November 2003 VA examiner--the only medical opinion to address the question of a secondary relationship. The examiner indicated that the veteran had hypertension for the previous six to eight months and had been off and on medications with moderate control. The report of the VA examination noted that his blood pressure readings were160/90, 158/90 and 156/88. His pulse rate measured 80. The examiner diagnosed hypertension, and opined that the veteran's hypertension was not due to service and was not caused by his service-connected diabetes. In a March 2006 addendum requested in the Board's February 2006 remand of this issue, the November 2003 VA examiner noted that the claims file was reviewed as well as subsequent VA electronic medical records found on the computer. The examiner indicated that the most recent reported blood pressure readings (148/77 in March 2005 and 126/63 in November 2005) showed that the veteran's hypertension was still well controlled. November 2005 lab work included normal kidney function tests which indicated that the kidneys had not been adversely affected by hypertension or diabetes. The examiner's impression was that the potential aggravation of hypertension by diabetes is only through the mechanism of renal failure, which was not present in this case. The examiner opined that it was less likely than not that the veteran's hypertension had been aggravated by his service- connected diabetes. The Board accords great probative value to the VA examiner's comments, based as it was on a review of the veteran's claims file, a detailed review of pertinent aspects of the veteran's documented medical history, and a current examination, 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, 470-71 (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 evidence or opinion that supports a finding of service connection for hypertension on a direct, presumptive, or secondary basis. In addition to the medical evidence addressed above, the Board has considered the assertions of the veteran and his representative advanced in connection with the claim on appeal. However, as laymen without appropriate medical training and expertise, neither the veteran nor his representative is competent to render a probative opinion on a medical matter, to include a question as to the etiology a current disability. See 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 layman 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 claim for service connection for hypertension, to include as secondary to service- connected diabetes mellitus, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the 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 v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs