Citation Nr: 1000028 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 06-09 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hypertension to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for a kidney disorder to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.C. Schingle, Associate Counsel INTRODUCTION The Veteran had active military service from September 1969 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Indianapolis, Indiana. The Board notes that, in January 2007, the Veteran withdrew the issues of hearing loss and tinnitus prior to certification of this appeal to the Board. Thus, these issues are no longer in appellate status and will not be addressed by the Board. FINDINGS OF FACT 1. Hypertension is not shown to be causally or etiologically related to service or to service-connected diabetes mellitus 2. A kidney disorder is not shown to be causally or etiologically related to service or to service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service, may not be presumed to have to been incurred or aggravated, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2009). 2. A kidney disorder was not incurred in or aggravated in active military service, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Prior to the adjudication of the Veteran's claims, a letter dated in December 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to his claims. The letter informed the Veteran that additional information or evidence was needed to support his service connection claims. In June 2007, a letter was sent to the Veteran fully enunciating the requirements of establishing service connection on a secondary basis, .i.e., that there must be competent evidence that the claimed disability was caused or aggravated (beyond its natural progression) by a service connected disability. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although the June 2007 letter was not sent prior to initial adjudication of the Veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, the claim was readjudicated, and a supplemental statement of the case (SSOC) was promulgated in November 2007. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case (SOC) or 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, 499 F.3d 1317 (Fed. Cir. 2007) [hereinafter Mayfield III]. 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 Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-34). As to the duty to assist, the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent possible. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. VA medical opinions with respect to the issues on appeal were obtained in April 2005 and May 2007. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that, collectively, the VA opinions obtained in this case are adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file and the statements of the appellant. The report also provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Further, since the Board has concluded that the preponderance of the evidence is against the Veteran's claims of service connection, any questions as to the appropriate disability rating or effective dates to be assigned are rendered moot and no further notice is needed. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In summary, the Veteran has been made aware of the information and evidence necessary to substantiate his claims and is familiar with the law and regulations pertaining to the claims. See Desbrow v. Principi, 17 Vet. App. 207 (2004); Valiao v. Principi, 17 Vet. App. 229, 232 (2003). Law and Analysis Applicable law provides that service connection will be granted if it is shown that a veteran has a disorder resulting from an 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, in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). Service connection may also be granted for certain chronic diseases such as hypertension when the disease is manifested 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. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. §§ 3.303, 3.304 (2009). In order to establish service connection, a claimant must generally submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of service incurrence or aggravation of an injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in- service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). A review of the service treatment records show no evidence of complaints of or treatment for hypertension or kidney problems during service, or within one year of service discharge. The Veteran does not contend otherwise. Indeed, he asserts that his hypertension and kidney problems are the direct result of his service-connected diabetes mellitus. In this regard, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. As noted above, the Veteran contends that his current hypertension and a kidney disorder are directly related to his service-connected diabetes mellitus. The evidence of record shows a diagnosis of hypertension in April 2001 and a diagnosis of diabetes mellitus several months later. The evidence does not show specific complaints of or treatment for any kidney disability. See also January 2007 DRO hearing transcript. In April 2005, the Veteran was afforded a VA examination for diabetes mellitus. During the examination the examiner noted the Veteran's history of treatment for hypertension since one year prior to a diagnosis of diabetes mellitus. The examiner noted no abnormalities of renal function or urinalysis testing. The diagnosis was diabetes mellitus type 2 and hypertension. The examiner opined that the hypertension predated the diagnosis of diabetes and was, therefore, not likely caused or aggravated by the diabetes. In an undated private treatment record, Dr. D.M. noted that he had treated the Veteran for diabetes since 2001 and opined that the Veteran may have had hyperglycemia four to five years prior to his actual diagnosis of diabetes. In July 2006, Dr. D.M. opined that the Veteran's hypertension and kidney problems were more likely than not secondary to his diabetes mellitus. In May 2007, the Veteran was afforded a VA examination. The examiner reported that the Veteran's hypertension was not a complication of diabetes. He noted that renal function was normal and the Veteran had other risk factors for hypertension including his family history and a history of smoking. The examiner reasoned that even if the Veteran was hyperglycemic for four to five years prior to his diagnosis of diabetes, there is still no laboratory evidence that renal function was abnormal. Thus, he opined that the Veteran's hypertension was not worsened by, increased by, or related to service-connected diabetes. With regard to a claim of a kidney disorder, the examiner noted no evidence of kidney problems as a complication of diabetes. The examiner noted there was no evidence of diabetes mellitus causing abnormal renal function and no diabetic nephropathy, therefore, he opined that diabetes mellitus was not the cause of swelling in the Veteran's ankles. He reported that the swelling was less likely than not related to diabetes, and was more likely related to the Veteran's other health problems such as venous stasis, hypertension or knee arthritis and right total knee replacement. He opined, in essence, that the Veteran's claimed kidney problems, including swelling of the ankles, were not worsened by, increased by, or related to service- connected diabetes. In light of the evidence of record, the Board finds that secondary service connection for hypertension and a kidney disorder is not warranted. As an initial matter, the Board notes that it is unclear as to whether the Veteran has a current diagnosis of a kidney disorder. A claim of service connection must be accompanied by medical evidence establishing that the claimant currently has the claimed disability. Absent proof of a present disability, there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability); Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection). However, to the extent that the Veteran's private physician, Dr. D.M. indicates in his 2006 letter that the Veteran has "kidney problems", the Board finds that the most probative evidence of record indicates that neither hypertension nor a kidney disorder was proximately caused by or proximately aggravated by the Veteran's service-connected diabetes mellitus. See Allen, supra. In fact, the most credible evidence of record presents a negative nexus. Specifically, the 2005 and 2007 VA examiners opined that hypertension was not related to diabetes and noted no evidence of kidney problems or renal abnormalities related to diabetes. The Board acknowledges the private medical opinions provided by Dr. D.M. stating that the Veteran's hyperglycemia may have begun several years prior to his diagnosis of diabetes mellitus and related the Veteran's hypertension and kidney problems to diabetes. However, the Board does not find the opinions probative because they are speculative, unsupported by the record and are not supported by rationale. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion included the physician's access to the claims file and the thoroughness and detail of the opinion); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In this regard, the private examiner stated that the hyperglycemia "may" have been present four to five years before the diagnosed diabetes. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that a medical opinion that stated "may" also implied "may not" and was therefore speculative). Additionally, the opinion is not supported by the evidence of record which shows no treatment for kidney or renal disorders and the examiner provided no supporting rationale for his opinion. By contrast, the 2005 and 2007 VA examiner's opinions were based on a review of the claims file, including the Veteran's lay statements and provided well-reasoned medical conclusions that are supported by the record. Thus, the most probative medical evidence of record shows no relationship between hypertension or a kidney disorder and service-connected diabetes mellitus. Thus, service connection on a secondary basis is not warranted. With respect to the Veteran's own contentions that hypertension and a kidney disorder are related to service- connected diabetes mellitus, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Board finds the Veteran's contentions regarding the etiology of his hypertension and claimed kidney disorder are of little probative weight given his lack of demonstrated medical expertise. The Board finds that the greatest probative weight should be accorded the 2007 VA examiner's opinion which does not establish a relationship between the Veteran's hypertension and a kidney disorder and his service-connected diabetes mellitus. In this regard, the Board finds the 2007 examiner's opinion probative because it was based on a review of the claims file and provided a well- supported medical opinion. See Prejean, supra; see also Guerrieri, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for hypertension and a kidney disorder to include as secondary to diabetes mellitus. See Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for hypertension to include as secondary to service-connected diabetes mellitus, is denied. Service connection for a kidney disorder to include as secondary to service-connected diabetes mellitus, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs