Citation Nr: 0811172 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-41 736 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for hypertension with blurred vision, vertigo and nausea claimed as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The veteran served on active duty from June 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the RO. FINDINGS OF FACT 1. The veteran is not shown to have manifested complaints or findings referable hypertension in service or for many years thereafter. 2. The currently demonstrated systemic hypertension with any related blurred vision, vertigo or nausea is not shown to have caused or aggravated by the service-connected diabetes mellitus. CONCLUSION OF LAW The veteran's disability manifested by hypertension with blurred vision, vertigo and nausea that is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in the claimant's possession that pertains to the claim. By way of letters dated in April 2004 and March 2006, the veteran was furnished notice of the type of evidence needed in order to substantiate his claim, including notice that a disability rating and effective date will be assigned if service connection is awarded, as well as the type of evidence VA would assist him in obtaining. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran was also generally informed that he should send to VA evidence in his possession that pertains to the claim, and advised of the basic law and regulations governing the claim, the cumulative information and evidence previously provided to VA (or obtained by VA on the veteran's behalf), and provided the basis for the decisions regarding the claim. In addition, the RO provided the veteran and his representative with adequate notice of the evidence, which was not of record, that was necessary to substantiate the veteran's claim, and also specifically informed the veteran of the cumulative information and evidence previously provided to VA, or obtained by VA on the veteran's behalf. For the reasons above the Board finds that VA substantially complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the notice requirement, pertaining to the evidence in the claimant's possession or a similar request to that effect). In this context, it is well to observe that VCAA requires only that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet. App. 553 (1996). The Board also finds that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). In particular, the information and evidence associated with the claims file consists of the veteran's service records, post- service medical treatment records, VA examinations, and statements submitted by the veteran and his representative in support of his claim. Based on the foregoing, the Board concludes that there is no identified evidence that has not been accounted for with respect to the veteran's claim and that, under the circumstances of this case, VA has satisfied its duty to assist the veteran in this case. Accordingly, further development and further expending of VA's resources is not warranted. See 38 U.S.C.A. § 5103A. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). The regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a year following discharge from service. 38 C.F.R. § 3.307, 3.309. Further, service connection may be granted for disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this case, the veteran's medical records do not indicate that the veteran had hypertension in service or within one year of service. Rather, the veteran is shown to have been diagnosed with hypertension in the mid-1980's. Other records indicate that he was diagnosed with hypertension in 1999 when he began using medication. In this regard, the veteran asserts that he was diagnosed with hypertension three years earlier, in 1996, during an evaluation for complaints of dizziness. The medical evidence also indicates that the veteran was diagnosed with diabetes mellitus in approximately 1995. In order to determine whether the veteran has hypertension that is related to service or the veteran's service-connected diabetes mellitus, the veteran was afforded two VA examinations. The first VA examination was preformed in April 2004. The examiner indicated that the claims file had been reviewed in connection with the examination and noted the medical history and current complaints, to include periods of dizziness and feeling faint. The veteran reported that these were symptoms of his hypertension. The veteran was also noted to be approximately 238 pounds in December 1999, approximately 307 pounds in February 2000, and over 300 pounds in December 2003. After examination and review of the record, the VA examiner diagnosed the veteran with hypertension. With respect to an association with his service-connected diabetes mellitus, the examiner stated that the "[v]eteran's hypertension [was] not likely related to his diabetes. Documentation would suggest elevated blood pressure was directly related to significant weight gain. Blood pressure ha[d] been well controlled on medication. There [was] no clinical evidence diabetes cause[d] hypertension." The veteran was afforded another VA examination in November 2005. The examiner indicated that the claims file had been reviewed in connection with the examination. The veteran was noted to be service-connected for diabetes mellitus and the examiner indicated that he had been diagnosed with diabetes mellitus in approximately 1995. The examiner also indicated that the veteran had been diagnosed with hypertension in the mid 1980's and noted that there was no evidence of any end organ damage as a result of systemic hypertension. The veteran denied having any particular symptoms related to hypertension. While the veteran complained of occasional dyspnea on exertion, he had not been diagnosed with coronary artery disease, left ventricular hypertrophy or any other heart condition, to include hypertensive cardiomyopathy. The veteran was noted to weigh 316 pounds. After examination, the veteran was diagnosed with diabetes mellitus type II, and systemic hypertension. With respect to the cause of the veteran's hypertension, the VA examiner stated that "[i]t [was] unlikely that the veteran's current hypertension [was] related to diabetes mellitus. The reason for this [was] due to the fact that the veteran's systemic hypertension was diagnosed approximately ten years prior to the diagnosis of diabetes mellitus. Additionally, while poorly controlled diabetes [might] certainly exacerbate or aggravate systemic hypertension, this veteran ha[d] had well-controlled diabetes mellitus as reflected by his hemoglobin A1C. Additionally, his systemic hypertension [was] under good control and certainly not mismanaged. Furthermore, the veteran ha[d] a history of dyslipidemia, in addition to being obese, both of which [were] risk factors for the progression of systemic hypertension. Nonetheless, there [was] no particular relation between any current blood pressure issues and diabetes mellitus. Furthermore, there [were] no other end organ affects to include the lack of blurred vision, dizziness or nausea. There [was] no particular documentation for this related to hypertension. Additionally, even if there were, it ha[d] already been established there is no particular relation to diabetes." Based on the foregoing, the claim of service connection for hypertension with blurred vision, vertigo and nausea must be denied. In this regard, the Board notes that the veteran's medical records do not indicate the presence of hypertension in service or within one year of service. And neither VA examiner, who examined the veteran and his claims file, opined that the veteran's hypertension was related to or caused by his service-connected diabetes mellitus. Based on the foregoing, the Board finds that the evidence is against a finding that the veteran has hypertension with blurred vision, vertigo and nausea that is the result of his active service or a service-connected disability. The Board, however, is precluded from reaching its own unsubstantiated medical conclusions, and is instead bound on these matters by the medical evidence of record. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); in Colvin v. Derwinski, 1 Vet. App. 171 (1991). ORDER Service connection for hypertension with blurred vision, vertigo and nausea claimed as secondary to service-connected diabetes mellitus is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs