Citation Nr: 0811891 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-11 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for congestive heart failure, to include as secondary to diabetes mellitus. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. ATTORNEY FOR THE BOARD D. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from March 1964 to March 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 decision rendered by the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for congestive heart failure, hypertension, and decreased renal function, as secondary to service-connected diabetes mellitus type 2 with non-proliferative diabetic retinopathy right eye. In a June 2007 rating action, the RO granted service connection for decreased renal function. Therefore the only issues remaining on appeal are as listed on the title page. FINDINGS OF FACT 1. Congestive heart failure did not manifest in service or within one year of separation; competent medical evidence is against a finding that congestive heart failure is due to the veteran's period of service, and that congestive heart failure is due to or aggravated by any service-connected disorder, including diabetes mellitus. 2. Hypertension did not manifest in service or within one year of separation; competent medical evidence is against a finding that hypertension is due to any aspect of the veteran's period of service, and that hypertension is due to or aggravated by a service-connected disorder, including diabetes mellitus. CONCLUSIONS OF LAW 1. Service connection for congestive heart failure is not warranted on a direct or secondary basis. 38 U.S.C.A. § 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310 (a) (2007). 2. Service connection for hypertension is not warranted on a direct or secondary basis. 38 U.S.C.A. § 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310 (a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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 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 any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. The notification must also include the request that the claimant provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b) (2007). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119- 120 (2004). Furthermore, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA substantially complied with notification responsibilities in regards to the veteran's claim for service connection for congestive heart failure and hypertension, in correspondence sent to the veteran in November 2004 and April 2006. These letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claims, and requested that the veteran send in evidence in his possession that would support his claims. In particular, the April 2006 letter provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in the Dingess decision. VA has also made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). The information and evidence associated with the claims file consist of the veteran's service medical records, private medical treatment records, and reports from VA examinations. The veteran has not identified any outstanding records for VA to obtain that were relevant to the claim and the Board is likewise unaware of any. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Factual Background & Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau, 2 Vet. App. 141. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for chronic diseases, such as congestive heart failure or hypertension, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, VA regulations were amended to include that 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. It was noted, however, that VA will not concede 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. 38 C.F.R. §3.310(b) (effective after October 10, 2006); see 71 Fed. Reg. 52744 (Sept. 7, 2006) (noting the revision was required to implement the Court's decision in Allen, 7 Vet. App. 439). 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. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2007); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The veteran contends he is entitled to service connection for congestive heart failure and hypertension. Although not specifically contended by the veteran, the RO also addressed whether secondary service connection for congestive heart failure and hypertension is warranted as having been caused or aggravated by the service-connected disability of diabetes mellitus. Therefore, the Board will discuss both theories of entitlement. First, the Board finds that service connection is not warranted for hypertension or congestive heart failure on either a direct or presumptive basis. There is no medical evidence showing that the veteran had either of these chronic disabilities during active duty service, and neither disorder was shown to have manifested to a compensable degree within a year of separation from military service. Rather, the preponderance of the evidence shows that congestive heart failure and hypertension both manifested several years after separation from active duty military service. Service medical records show no treatment or diagnosis of congestive heart failure or elevated blood pressure readings, indicative of an onset of hypertensive vascular disease, during active duty. The March 1966 physical examination for separation purposes was normal in this regard, and the veteran's blood pressure was recorded as 122/72. There is no competent medical evidence of record showing that congestive heart failure and hypertension manifested to a compensable degree within one year of the veteran's separation from service; therefore, it is not presumed these disorders were incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Post-service private medical treatment records are dated from June 1992 to December 2006 and show treatment for numerous disorders, including but not limited to, congestive heart failure, hypertension, and diabetes mellitus. Of significant note, however, are the records of Dr. M. These treatment records reflect findings of consistently elevated blood pressure readings beginning in July 1992. A record dated in April 1994 appears to indicate a finding of congestive heart failure, and another record dated in June 1996 appears to show a diagnosis of hypertension; however those particular notes are handwritten and somewhat illegible. Notes from a March 1998 clinical evaluation show that Dr. M. had treated the veteran in the past and had last seen him in June 1996. Dr. M. indicated that the veteran had a history of severe hypertension and cardiomyopathy. The veteran had also informed him that he had recently become diabetic and was taking Glucophage (a diabetic medication). Following the clinical evaluation, the diagnostic impression was significant hypertension and hypertensive cardiovascular disease. Dr. M. later diagnosed the veteran with congestive heart failure in November 1998. He did not relate hypertension or congestive heart failure to the veteran's military service. Overall, the claims file is absent any competent medical evidence or opinions that demonstrate a causal nexus between active duty service and either congestive heart failure or hypertension. After separation from service in March 1966, the first clear evidence of congestive heart failure and hypertension is seen in 1998, more than 22 years after the veteran's discharge from service. This lengthy period without treatment for either disorder also weighs heavily against the claims. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). In sum, the objective medical evidence of record shows no evidence of either congestive heart failure or hypertension during active duty or within the one-year period following separation. In addition, the earliest evidence of these disorders was not until many years after separation. See 38 C.F.R. § 3.303, 3.307, 3.309 (2007). Therefore, service connection for the two disorders on either a direct or presumptive basis is not warranted. The evidence of record also does not support service connection for congestive heart failure or hypertension as secondary to the service-connected disability of diabetes mellitus. The Board notes that competent medical evidence is required where a determinative issue involves medical causation or a medical diagnosis. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran has not proffered any medical evidence to show that his service-connected diabetes either caused or aggravated his congestive heart failure and hypertension. The only medical evidence of record that addresses this theory of entitlement is found in VA examination reports dated in December 2004 and May 2005. At the VA examination in December 2004, the veteran's claims file was not available for review. The veteran reported that he had been diagnosed with diabetes mellitus 15 years ago and hypertension in 1975. Following a complete physical examination, the examiner provided a diagnosis of uncontrolled diabetes mellitus type 2 and essential hypertension complicated by congestive heart failure. The examiner determined that the hypertension preceded the diabetes mellitus. He explained further that the cause (of the essential hypertension) was idiopathic and diabetes mellitus does not cause essential hypertension. Idiopathic is defined as arising spontaneously or from an obscure or unknown cause. In addition, the examiner opined that the veteran's congestive heart failure was most likely secondary to his hypertension and not the diabetes mellitus. In the October 2005 VA examination report, the examiner indicated that he had reviewed the veteran's claims file and the pertinent medical history. He also reviewed the December 2004 VA examination report. In reviewing the veteran's history, the examiner noted that the veteran's hypertension was of the essential type. Following an objective evaluation, the examiner concluded that the congestive heart failure was most likely secondary to the hypertension and not the diabetes mellitus. The examiner opined that the since the veteran had congestive heart failure and hypertension, the most likely cause was the hypertension. The examiner concluded that the diabetes mellitus did not aggravate the pre-existing hypertension or any other condition. Based upon the examiners' findings, and in light of the fact that there are no other medical opinions or related evidence to refute such findings; the Board finds that service connection for congestive heart failure and hypertension, on a secondary basis, must be denied. Although the veteran may believe that there is a causal link between his military service (or a service-connected disorder) and the development of hypertension and congestive heart failure, he is not a medical professional and therefore lacks the requisite training and accreditation to present a competent opinion on a matter regarding medical diagnosis and etiology. Thus, his statements in this regard, absent corroboration by objective medical evidence, are entitled to no probative weight. Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In view of the foregoing discussion, the Board concludes that the claims of entitlement to service connection for congestive heart failure and hypertension, on a direct basis or secondary basis, is denied, and the benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. ORDER Service connection for congestive heart failure, to include as secondary to diabetes mellitus, is denied. Service connection for hypertension, to include as secondary to diabetes mellitus, is denied. ____________________________________________ Dennis F. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs