Citation Nr: 0810960 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-06 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for hypertension, including as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The veteran served on active duty from May 1967 to May 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the benefit sought on appeal. FINDING OF FACT The veteran's hypertension was not caused or aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW Hypertension was not incurred in, or aggravated by active service, may not be presumed to have been so incurred, and is not proximately due to, or the result of, service-connected diabetes mellitus. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Legal criteria Service connection is granted where the veteran has a disability resulting from an injury suffered or disease contracted in the line of duty, or aggravation of a pre- existing injury suffered or disease contracted in the line of duty, in active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. There must be chronic disability. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection also is granted for any disease diagnosed after discharge, when all evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must show: (1) medical evidence of current disability; (2) medical evidence or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between current disability and in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999). Certain chronic disabilities, such as hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The provisions of 38 C.F.R. § 3.310 provide that service connection may be granted where a disability is proximately due to or the result of already service-connected disability. Compensation is also payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). History and analysis Initially, the Board observes that the veteran does not claim, and the record does not show, that the veteran developed hypertension during service, or within a year of discharge from service. The service medical records contain no findings of hypertension during the veteran's active service and the veteran's heart was clinically evaluated as normal on his April 1970 separation examination. Hypertension was not diagnosed until many years after discharge from service. Service connection was granted for diabetes mellitus type II in June 2003, effective from May 2002, and with a 20 percent rating in effect since December 2003. Medical records from Halifax Medical Specialists in May 2003 note that the veteran was diagnosed with hypertension. In addition, a May 2003 physician's statement by Dr. Gerardo M. Maradiaga reflects a diagnosis of mild hypertension. A September 2003 statement from the veteran's treating physician, Dr. Gerardo M. Maradiaga, noted that the veteran was diagnosed with diabetes mellitus, peripheral neuropathy and hypertension. He opined that these problems are all related to the same dysmetabolic syndrome. A December 2004 statement from Dr. Maradiaga reiterated much of the September 2003 statement, and added that that the three above problems are all typical of dysmetabolic syndrome. Dr. Maradiaga stated that the only sequala seen regarding his diabetes mellitus is that he has diabetic polyneuropathy. In addition, it was noted that the veteran had a negative cardiac catheterization earlier that year and had a regular eye exam. In June 2004, a VA examiner examined the veteran to determine a possible link between his diabetes mellitus and hypertension. The examiner diagnosed hypertension with subjective factors of dizziness and objective factors of elevated blood pressure controlled by Atenolol. The examiner also stated that diabetes does not cause hypertension. While the September 2003 and December 2004 statements by Dr. Maradiaga opine that the veteran's diabetes mellitus, peripheral neuropathy and hypertension are all related to the same dysmetabolic syndrome, Dr. Maradiaga did not provide any opinion as to whether the veteran's hypertension is caused or aggravated by his diabetes mellitus. Contrary to the veteran's assertions, a thorough review of the medical records does not reveal any medical opinion indicating that the veteran's hypertension is caused or aggravated by his service-connected diabetes mellitus. While the veteran has stated many times his belief that his hypertension is secondary to his service-connected diabetes mellitus, as a layperson he is not qualified to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Not only is there no medical evidence in support of the veteran's claim, but there is also medical evidence against the veteran's claim. As noted above, in June 2004 a VA physician opined that the veteran's hypertension was unrelated to his diabetes mellitus. Therefore, the preponderance of the evidence is against the claim and service connection for hypertension, including as secondary to service-connected diabetes mellitus is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). By a December 2003 letter the RO sent the veteran the required notice. The letter specifically informed him of the type of evidence needed to support the claim, who was responsible for obtaining relevant evidence, where to send the evidence, and what he should do if he had questions or needed assistance. He was, in essence, told to submit all pertinent evidence he had in his possession pertaining to the claim, and he was specifically advised to do so in an April 2005 letter. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, he was given the specific notice required by Dingess, supra, in June 2006. The Board acknowledges that the December 2003 letter was supplemented by letters after the adverse rating decision, but concludes that the timing of the additional notices did not prejudice the veteran. He was given the specific notice required by the Dingess decision within a few months after that decision was issued, and the April 2005 letter explicitly stated that he should submit pertinent evidence in his possession to supplement the implied instruction to do so. The veteran had ample opportunity to submit information and evidence to support his claim. With respect to VA's duty to assist the veteran, the RO has obtained the veteran's service medical records and provided a VA medical examination. The veteran submitted private medical records from Halifax Regional Medical Center and Halifax Medical Specialists, as well as outpatient records and statements from Dr. Gerardo M. Maradiaga. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. Neither the veteran nor his representative has indicated that there are any additional pertinent records to support the veteran's claim. In fact, in April 2005 the veteran specifically stated that he had no more evidence to submit. In sum, the Board is satisfied that the originating agency properly processed the veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for hypertension, including as secondary to diabetes mellitus, is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs