Citation Nr: 0814761 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 05-29 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for hypertension, to include claimed as secondary to service-connected diabetes mellitus type II. ATTORNEY FOR THE BOARD Douglas J. Boorstein, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from September 1967 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied service connection for hypertension, on a direct basis and as secondary to diabetes mellitus type II. The veteran requested a Board hearing on substantive appeal in June 2005. However, by correspondence dated February 2008, he indicated that he no longer wanted a Board hearing. Therefore, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (2007). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Hypertension was diagnosed many years after service and is not shown to be causally related to service, or caused or aggravated by the service-connected diabetes mellitus, type II. CONCLUSION OF LAW The veteran's hypertension is not proximately due to or the result of his service-connected diabetes mellitus type II, nor is it directly or presumptively related to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria 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; 38 C.F.R. § 3.303(a). Service connection for 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(a). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the United States Court of Appeals for Veteran's Claims' case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, 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). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be: (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). A disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice-connected disability caused by a service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment sets forth language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. In order for service connection to be granted on a secondary basis, three elements must be present: a current disability, a service-connected disability, and a medical nexus between the veteran's service-connected disability and the veteran's non-service connected disability. See 38 C.F.R. § 3.310(a). When all the evidence is assembled, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Analysis The veteran contends that his hypertension is due to his in- service Agent Orange exposure or, alternatively, due to his service-connected diabetes mellitus. There is no evidence that the veteran had hypertension during his service. On separation examination in August 1969, the veteran's heart and vascular system were both normal. The veteran's blood pressure was 110 systolic and 76 diastolic. The veteran denied high or low blood pressure at this separation examination. The veteran has indicated that doctors first expressed concern regarding his blood pressure in 1976. There is no documentation of this fact in the veteran's claims file, in any event, the competent evidence of record fails to show that the veteran's hypertension manifested to a compensable degree within one year after separation from service in 1969. Therefore, the provisions of 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a) are inapplicable. Additionally, while the veteran has indicated that he began receiving treatment for elevated blood pressure in 1993, the earliest documentation regarding the veteran's blood pressure was in November 1996. At that time, his elevated blood pressure appeared to be due to stress, in particular the stress of attending law school. Private medical reports thereafter confirm hypertension related to school and marital stress. Not one of the reports, VA or non-VA attributes the veteran's hypertension to service. The veteran also attributes his hypertension to his service- connected diabetes mellitus, type II. In this regard, the Board notes that the 2003 and 2004 VA examinations reports reflect that the veteran was diagnosed with diabetes mellitus in approximately 1999-2000. Service connection for diabetes mellitus, type II, is in effect. However, the competent and credible evidence of record does not establish a relationship between the veteran's service- connected diabetes mellitus and his nonservice-connected hypertension. In fact, in April 2004, a VA examiner concluded that given the available medical information and given the fact that the veteran's hypertension had been long- standing prior to the onset of the veteran's diet-controlled diabetes mellitus type II, it was less likely than not that the veteran's hypertension is related to his current diagnosis of diabetes mellitus type II. Additionally, a fee- basis VA examination in July 2006, confirmed the aforementioned. The 2006 examiner noted that the veteran's hypertension had an unknown cause, it was not related to the veteran's service. The examiner noted further that the veteran's hypertension existed well before the diagnosis of the veteran's diabetes mellitus type II and concluded that the veteran's diabetes mellitus type II had no significant effect on the veteran's hypertension. The Board has also reviewed other evidence in the veteran's claims file, including other VA outpatient treatment reports, private medical records and social security records. None of these medical records indicate that the veteran's hypertension was caused by his diabetes mellitus type II. It is noted that where hypertension is alleged to be proximately due to or the result of any nonservice-connected disability, e.g., polycystic kidney disease, service connection is not warranted as a matter of law. The Board does not doubt the sincerity of the veteran's belief that his hypertension was caused by his diabetes mellitus type II, or that it was caused by his exposure to Agent Orange in service. However, as a lay person without the appropriate medical training and expertise, he simply is not competent to provide a probative opinion on a medical matter, to include determining the etiology of a disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for hypertension, both on a direct basis and as secondary to diabetes mellitus type II, and the benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. The claim is denied. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA 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; and (3) that the claimant is expected to provide; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board concludes that the veteran has been afforded proper notice under the VCAA. The RO provided a VCAA notice letter to the veteran in November 2004, prior to the initial adjudication of the veteran's claim in March 2005. An additional letter was sent in June 2006. The veteran's claim has been readjudicated multiple times since the issuance of the June 2006 letter, including February 2007 and October 2007 Supplemental Statements of the Case. Prickett v. Nicholson, 20 Vet. App. 370 (2006). The VCAA letters notified the veteran of his and of VA's responsibilities regarding obtaining records. The November 2004 letter informed the veteran that he should submit any evidence that pertains to his claim. This sentence was in bold print and was underlined. With regard to Dingess, a letter in this regard was sent to the veteran in June 2006. This letter informed the veteran of how VA determines a disability rating and an effective date. While this letter was sent after the initial adjudication of the veteran's claim, the veteran has not been prejudiced, as his claims have been readjudicated in February 2007 and October 2007 Supplemental Statements of the Case. See Prickett. VA must also make reasonable efforts to assist the claimant 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 claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has received the veteran's service medical records, VA treatment records, private medical records, and social security records. VA has therefore fulfilled its duty to assist in this regard. Assistance to the veteran shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA obtained a medical opinion with regard to the veteran's claim in April 2004. The veteran was provided with an examination, performed under contract for VA by QTC, in July 2006. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Service connection for hypertension, to include claimed as secondary to service-connected diabetes mellitus type II, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs