Citation Nr: 0811188 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-02 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for chronic hypertension, to include as secondary to service-connected type II diabetes mellitus. 2. Entitlement to service connection for a vision disability, to include as secondary to service-connected type II diabetes mellitus. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from November 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran testified before a Decision Review Office at an August 2005 hearing at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. Chronic hypertension was not manifested during the veteran's active duty service or within one year of service discharge; any current hypertension is not otherwise related to such service or to the veteran's service-connected type II diabetes mellitus. 2. A vision disability was not manifested during the veteran's active duty service and any current vision disability is not otherwise related to such service or to the veteran's service-connected type II diabetes mellitus. 3. COPD was not manifested during the veteran's active duty service and any current COPD is not otherwise related to such service or to the veteran's service-connected type II diabetes mellitus. CONCLUSIONS OF LAW 1. Chronic hypertension was not incurred in or aggravated by active duty service, service incurrence may not be presumed, nor was it proximately caused or aggravated by the veteran's service-connected type II diabetes mellitus. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310 (2007). 2. A vision disability was not incurred in or aggravated by active duty service nor was it proximately caused or aggravated by the veteran's service-connected type II diabetes mellitus. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 3. COPD was not incurred in or aggravated by active duty service nor was it proximately caused or aggravated by the veteran's service-connected type II diabetes mellitus. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the veteran received notification in a March 2003 letter and December 2005 statement of the case. These notifications advised the veteran what information and evidence was needed to substantiate the claims decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claims. He was specifically told that it was his responsibility to support the claims with appropriate evidence. Finally, the March 2003 letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. The Board notes that the December 2005 statement of the case was sent subsequent to the initial unfavorable agency decision in May 2004. However, the Board finds that any timing defect with regard to VCAA notice was harmless error. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). In this regard, the notice provided to the veteran fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the notice was provided, the case was readjudicated and a February 2007 supplemental statement of the case was provided to the veteran. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005); rev'd on other grounds, Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A March 2006 VCAA letter provided such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records are associated with claims file. Post-service treatment records and reports from the Battle Creek VA Medical Center (VAMC), Hackley Hospital and Dr. Varnado have also been obtained. The appellant has not identified any additional medical records that should be obtained. The veteran was afforded VA examinations in March and May 2005. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310 (2006); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre- aggravation baseline level of disability for the non-service- connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. Given what appear to be substantive changes, and because the veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which favors the veteran. In addition, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if manifest to a degree of 10 percent within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). With regards to direct service connection, service medical records are absent complaints, findings or diagnoses of any vision disability, hypertension or COPD during service. In addition, during the clinical examination for separation from service, the veteran's heart, eyes, lungs, and vascular system were evaluated as normal, and no indication of a chronic disorder was noted. Thus, there is no medical evidence that shows the veteran suffered from hypertension, a vision disability or COPD during service. In addition, there is no evidence of continuity of symptomology since active service in the present case. The evidence of record indicates that the veteran was first diagnosed with chronic hypertension in 1995 and visually significant cataracts, presbyopia and COPD in 2005. This is over 25 years since the veteran separated from service; this significant lapse in time between the active service and the first evidence of hypertension, a vision disability and COPD weighs against the veteran's claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. 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 (Feb. Cir. 2002) (en banc). Finally, certain chronic diseases, including hypertension, may be presumed to have occurred in service if manifested to a degree of 10 percent within one year of service discharge. 38 C.F.R. §§ 3.307, 3.309(a). However, as noted above, the veteran was not diagnosed with chronic hypertension until 1995, approximately 27 years after discharge from active service. Therefore, the presumption of service connection does not apply in this case. With respect to secondary service connection, the veteran contends that his diagnosed chronic hypertension, vision disability and COPD were proximately caused by his service- connected type II diabetes mellitus. Alternatively, he argues that these disorders have been aggravated by his service-connected type II diabetes mellitus. However, the record does not contain competent medical evidence or a competent medical opinion establishing an etiological link between these current disorders and his service-connected type II diabetes mellitus. In addition, there is no competent evidence of record that the veteran's type II diabetes mellitus has caused these conditions to increase in severity beyond their natural progression. With regards to chronic hypertension and COPD, the veteran was afforded a VA examination in March 2005. The examiner opined that hypertension "is not likely aggravated or caused by diabetes." In addition, the examiner opined that the veteran's COPD is "not likely related to the diabetes." The same VA examiner reiterated these opinions in an October 2005 statement. With regards to a vision disability, the veteran was provided a VA eye examination in March 2005. At that time, the veteran was diagnosed with visually significant cataract, astigmatism and presbyopia. The examiner ruled out diabetic- related retinopathy in either eye. While the examiner did not offer an opinion as to the etiology of these conditions at the time, he stated in October 2005 that "mixed stigmatism (sic) and presbyopia are conditions that are independent of his diabetes and not related to that diagnosis." The examiner did note in his October 2005 statement that the veteran's cataract was aggravated by his type II diabetes mellitus. However, the examiner noted that the cataract "has been eliminated" with surgery. As such, the competent evidence of record indicates the veteran does not suffer from a vision disability that is proximately due to or aggravated by his type II diabetes mellitus. The Board acknowledges that the veteran himself has claimed his currently diagnosed hypertension, vision disability and COPD are the result of or have been aggravated by his service-connected type II diabetes mellitus. However, as a layman, the veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In sum, there is no competent medical evidence included in the record to support the veteran's assertion that his service-connected type II diabetes mellitus is the proximate cause of or has aggravated his currently diagnosed chronic hypertension, vision disability and COPD. VA examiners have opined that these conditions are not proximately due to or aggravated by type II diabetes mellitus. The normal medical findings at the time of separation from service, as well as the absence of a diagnosis or treatment for many years after service, is probative evidence against the claim for direct service connection. In addition, the facts of this case do not warrant presumptive service connection for the veteran's hypertension, because this condition did not manifest to a degree of 10 percent within one year of his discharge from active service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for chronic hypertension, a vision disability and COPD, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). (CONTINUED ON NEXT PAGE) ORDER Service connection for chronic hypertension is denied. Service connection for a vision disability is denied. Service connection for COPD is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs