Citation Nr: 1003182 Decision Date: 01/21/10 Archive Date: 02/01/10 DOCKET NO. 06-20 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Richard Rasmussen, Associate Counsel INTRODUCTION The Veteran had active military service from June 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In June 2009, the Board remanded the Veteran's claims for additional development. FINDING OF FACT The Veteran does not have hypertension that is attributable to his active military service or to service-connected disability. CONCLUSION OF LAW The Veteran does not have hypertension that is the result of disease or injury incurred in or aggravated during active military service; hypertension is not the result of or proximately due to service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2009); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification and development action needed to render a decision as to the claim on appeal has been accomplished. Through a January 2005 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim. By a March 2006 notice letter, the RO provided the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claim, the claim was properly re- adjudicated in April 2006, which followed the notice letters. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also finds that the January 2005 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that the RO would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter requested the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. Consequently, a remand of this issue for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records (STRs) and personnel records have been obtained and associated with the claims file. The Veteran identified the Crownpoint VA Medical Center (VAMC), Hoehn Medical Group, a Dr. S., and a Dr. D. as treatment providers. Available records from those treatment providers were obtained. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. Additionally, in August 2009 and September 2009 the Veteran was afforded VA examinations, the reports of which are of record. 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). As noted below, the Board finds that the VA opinions obtained in this case are sufficient as they are predicated on consideration of the private and VA medical records in the Veteran's claims file, as well as examination findings. They consider the statements of the Veteran, and provide a rationale for the opinions stated, relying on and citing to the records 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). II. Analysis In a November 2004 statement, the Veteran contends that his hypertension is secondary to his diabetes mellitus. In July 2005, the Veteran was awarded service connection for diabetes mellitus. Thus, the Veteran contends that service connection is warranted for hypertension secondary to service-connected diabetes mellitus. Service connection may be established for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). In general, service connection requires: medical evidence of a current disability; medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Under 38 C.F.R. § 3.310, service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a non- service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this regard, the Board notes that there has been an 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 disability 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 based on aggravation may be made. This had not been VA's practice, which strongly suggests that the recent change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board has considered the version of 38 C.F.R. § 3.310 in effect before the change, a version which favors the claimant. A review of the Veteran's STRs reveals that the Veteran did not receive treatment for or a diagnosis of hypertension in service. The Veteran's December 1965 pre-induction examination report indicates a blood pressure reading of 110/76. The Veteran's June 1967 entrance examination report indicates a blood pressure reading of 128/70. Finally, the Veteran's April 1969 separation examination report indicates a blood pressure reading of 130/70. A review of the Veteran's post-service medical treatment records reveals frequent blood pressure testing and treatment for hypertension. The earliest evidence of record of hypertension is in March 2005 treatment records from the Crownpoint VAMC that indicate blood pressure readings of 135/83, 136/79, and 150/102 and a diagnosis of hypertension. In April 2005, the Veteran was afforded a VA examination in connection with this claim. The examination report indicates that the Veteran's blood pressure readings were 140/80, 140/80, and 140/80. The examiner diagnosed the Veteran with hypertension and opined that the Veteran's hypertension was not related to his diabetes mellitus. The examiner did not explain his conclusion and did not address whether the Veteran's diabetes mellitus had aggravated the Veteran's hypertension. In December 2007, the Veteran was again afforded a VA examination in connection with this claim. At the examination, the Veteran reported that he had a history of hypertension over the prior 25 years and a history of diabetes mellitus over the prior 15 years. The examination report indicates that the Veteran's blood pressure readings were 149/99, 153/103, 149/97, and 142/100. The examiner diagnosed the Veteran with hypertension and opined that the Veteran's hypertension was not related to his diabetes mellitus because the hypertension was diagnosed many years before the diabetes mellitus. The examiner did not address whether the Veteran's service-connected diabetes had aggravated the Veteran's hypertension. In August 2009, pursuant to the Board's June 2009 remand instructions, the Veteran was afforded another VA examination. At the examination, the Veteran reported that he was diagnosed with hypertension in 1985. The examination report indicates that the Veteran's blood pressure readings were 128/78, 128/78, and 128/78. The examiner diagnosed the Veteran with hypertension and opined that: [Hypertension] is not related to the Veteran's active military service. In his service medical records, his entrance physical exam, induction physical exam and exiting physical exam all have a normal blood pressure recorded. It is not caused by a service-connected disability which would be diabetes mellitus type 2 as [hypertension] was diagnosed at least 15 years prior to the diagnosis of diabetes mellitus. In September 2009, the August 2009 examiner provided an addendum. The examiner stated that: In addition to the previous compensation and pension opinion, the hypertension was not made chronically worse by the service-connected disability of diabetes mellitus. The Veteran has no complication of hypertension. He is under control with three medications that he has been taking for at least ten years. He has normal renal function. He has no history of a myocardial infarction or cerebrovascular accident. None of his service-connected disabilities have [sic] made his hypertension chronically worse. The Board finds that the 2009 examiner provided well-reasoned opinions, supported by the evidence of record, in which she did not attribute hypertension to the Veteran's period of active military service, attribute hypertension to the Veteran's service-connected diabetes mellitus or other service-connected disability, or find that hypertension had been aggravated by the Veteran's service-connected diabetes mellitus. Thus, without competent medical evidence attributing the Veteran's hypertension to his active military service or a service-connected disability, service connection is not warranted. See 38 C.F.R. § 3.304. While the Board does not doubt the sincerity of the Veteran's belief that his hypertension is the result of his service- connected diabetes mellitus, as a layperson, without the appropriate medical training or expertise, he is not competent to provide a probative opinion on a medical matter such as the etiology of a current disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The VA examiner clearly took into account the Veteran's complaints and contentions and arrived at medical conclusions contrary to the claim. The Board relies on the examiner's opinions as they are based on a review of the evidence and the Veteran's assertions and because of her expertise. For the foregoing reasons, the Board finds that the claim of service connection for hypertension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for hypertension is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs