Citation Nr: 0812191 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-30 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for hypertension, to include as secondary to the veteran's service-connected Type II Diabetes Mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from September 1965 to September 1967. This appeal to the Board of Veterans' Appeals (Board) is from a November 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In June 2005, to support his claim, the veteran testified at a videoconference hearing before a Veterans Law Judge of the Board. In May 2007, the Board informed the veteran that the Veterans Law Judge who had conducted that hearing had since retired. So the veteran was asked whether he wanted another hearing before a Veterans Law Judge that will ultimately decide this appeal. See 38 C.F.R. § 20.707. The veteran responded in May 2007 that he did not want another hearing. In September 2005 and July 2007, the Board remanded this case for additional development and consideration. FINDINGS OF FACT 1. The veteran did not have hypertension during service or within one year after his discharge, and there is no competent medical evidence otherwise suggesting this condition is due to his military service - including either caused or permanently exacerbated by his service-connected Type II Diabetes Mellitus. 2. The veteran's rather recent VA examinations in January 2006 and September 2007, post remand, determined he has essential hypertension that was not caused or chronically worsened by his service-connected Type II Diabetes Mellitus. CONCLUSION OF LAW The veteran's hypertension was not incurred in or aggravated by his military service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by his service-connected Type II Diabetes Mellitus. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist VA has complied with the duty-to-notify provisions of the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, a letter from the RO in March 2002 (1) informed the veteran of the information and evidence not of record that was necessary to substantiate his claim; (2) informed him of the information and evidence that VA would obtain and assist him in obtaining; (3) informed him of the information and evidence he was expected to provide; and (4) requested that he provide any evidence in his possession pertaining to his claim, or something to the effect that he should "give us everything you've got pertaining to your claim." Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). VA also has complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which states that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim: (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. The RO, via the Appeals Management Center (AMC), complied with the requirements in Dingess when it sent a Dingess insert letter in June 2006 and August 2007 discussing the downstream disability rating and effective date elements of the claim and then went back and readjudicated the claim in the January 2007 and October 2007 supplemental statements of the case (SSOCs). This is important to point out because the Federal Circuit Court recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 07-7130 (Fed. Cir. September 17, 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Even if arguably there is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post- decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit and needed to substantiate his claim; and (2) based on his contentions he is reasonably expected to understand from the notices what was needed. See Sanders v. Nicholson, 487 F.3d 881 (2007). VA also fulfilled its duty to assist by obtaining all relevant evidence concerning the claim under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The RO and AMC obtained all pertinent medical records identified by the veteran and his representative. In addition, VA furnished the veteran compensation examinations to determine the etiology of his hypertension - including in particular insofar as whether it is secondary to his service-connected Type II diabetes mellitus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Accordingly, the Board finds that no further assistance is needed to meet the requirements of the VCAA or Court. Entitlement to Service Connection for Hypertension, Including as Secondary to the Veteran's Service-Connected Type II Diabetes Mellitus The veteran claims that his hypertension is directly attributable to his military service or, on an alternative theory of secondary service connection, was either caused or aggravated by his service-connected Type II diabetes mellitus. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain conditions involving what are generally recognized as diseases of a chronic nature, such as cardiovascular disease (including hypertension), will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, a disability that is proximately due to or results from another disease or injury for which service connection has been granted shall be considered a part of the original condition. See 38 C.F.R. § 3.310. Also, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, he shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Records from the local VA Medical Center (VAMC) in New Orleans, including concerning an August 2000 consultation, confirm the veteran has hypertension (i.e., persistently elevated blood pressure readings to meet the minimum regulatory definition in 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (defining "hypertension" as diastolic blood pressure predominantly 90mm or greater, or isolated systolic hypertension with systolic blood pressure predominantly 160mm or greater with diastolic reading less than 90mm). So the determinative issue is whether his hypertension is somehow attributable to his military service, including by way of his already service-connected Type II diabetes mellitus. Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In evaluating this issue as to the likely etiology of the hypertension, all relevant evidence has been considered - both from during service and during the many years since. Concerning first the evidence during the veteran's military service, his service medical records (SMRs) are unremarkable for any indication of hypertension, either in the way of a pertinent complaint, persistently elevated blood pressure, or diagnosis. The blood pressure reading taken during an August 1967 examination for separation from service was 134/80 (systolic/diastolic), so within normal limits. There also is no indication of hypertension - certainly to a compensable degree of at least 10 percent, within one year after service. This evidence goes against finding this condition was either directly or presumptively incurred in service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. The veteran, however, still may establish his entitlement to service connection for hypertension if there is competent medical evidence otherwise linking this condition to his military service, including by way of his already service- connected type II diabetes mellitus. See 38 C.F.R. § 3.303(d); Hickson v. West, 12 Vet. App. 247, 253 (1999) (medical nexus requirement for service connection consists of a link between current disability and an identifiable in- service disease or injury). The earliest record showing a possible manifestation of hypertension is a March 1996 report from a private physician, Dr. P.C. When examined, the veteran had a blood pressure reading of 158/85 and was diagnosis with hypertension. He had a blood pressure of 130/90 in August 2007. There was never any indication, or even suggestion, however, that his hypertension dates back to his military service or that it is traceable to his service-connected diabetes mellitus. Consequently, VA afforded the veteran a compensation examination in January 2006, on remand, to determine whether he had hypertension in service and whether his hypertension is secondary to his service-connected Type II diabetes mellitus. The examiner noted that the veteran had received his first diagnosis of Type II diabetes mellitus in August 1999. Objective findings indicated his blood pressure recordings were 140/74, 141/79 with a pulse of 75 in sitting, 157/82 with a pulse of 83 in standing and 150/75 with a pulse of 80 in recumbent. The examiner diagnosed Type II diabetes mellitus, indicating it was controlled with oral hypoglycemic agents, and hypertension, indicating it was controlled with an anti- hypertensive agent. The examiner concluded the veteran did not meet the criteria for hypertension during his active military service as his blood pressure (134/80) in August 1967 did not meet the criteria. In addition, the examiner opined that the veteran has "essential hypertension which is not caused by his diabetes mellitus." However, a Board remand in July 2007 pointed out that examination did not address whether the veteran's hypertension could have been "aggravated" by his Type II diabetes mellitus. As mentioned, this, too, is a possible basis for establishing secondary service connection. 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Consequently, VA afforded another compensation examination in September 2007 to determine whether his Type II diabetes mellitus aggravated his hypertension. The examiner's review of the claims file noted blood pressure readings of 150/80 in April 2006, 132/80 in July 2006, 124/74 in January 2007, 114/60 in April 2007, 109/57 in April 2007, 132/80 in May 2007, and 130/90 in August 2007. Objective findings indicated the veteran's blood pressure in his left arm sitting was 138/78, right arm sitting was 132/80 and right arm standing was 118/72. The examiner indicated the veteran's Type II diabetes mellitus had been very well controlled. The examiner diagnosed essential hypertension with good control and Type II diabetes mellitus, also with good control. The examiner noted that a review of the veteran's service medical treatment records revealed no blood pressure readings that were consistent with hypertension and no diagnosis of hypertension. So based on the fact that his diabetes has been under good control until recently and also his blood pressure readings in the record indicate good control of his hypertension, the examiner concluded the Type II diabetes mellitus did not cause and was not aggravating the hypertension. Hence, there is no indication of the onset of hypertension in service, or otherwise suggesting that this condition first diagnosed several years post-service began during that time frame or was caused or aggravated by the service-connected Type II diabetes mellitus. Accordingly, there is no competent evidence directly linking the condition claimed to the veteran's military service, or secondarily by way of his Type II diabetes mellitus. Moreover, since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in the veteran's favor, and his claim must be denied. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for service connection for hypertension is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs