Citation Nr: 1004253 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 04-09 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension secondary to service-connected residuals of cold injury to both feet and residuals of bilateral ankle injuries. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran's active military duty from July 1983 to November 1988 involved two periods of service. The first period (from July 1983 to February 1986) included honorable service. The second period (from February 1986 to November 1988) involved other than honorable service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2006, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge. In April 2007, the Board remanded the appeal for additional development. The case is now back before the Board for final determination. FINDING OF FACT The Veteran's hypertension is not due to or aggravated by his service-connected residuals of cold injury to both feet and/or residuals of bilateral ankle injuries. CONCLUSION OF LAW Hypertension is not the result of service-connected residuals of cold injury to both feet and/or residuals of bilateral ankle injuries. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties To Notify And To Assist The Veterans Claims Assistance Act of 2000 (VCAA), which was enacted on November 9, 2000, eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Since the enactment of the law, the VCAA has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2009). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA and to those claims which were filed before the date of enactment but which were not yet final as of that date. Duty to Notify During the pendency of the current appeal, and specifically on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held 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. Those five elements include: (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 Court held that, upon receipt of an application for a service connection claim, both 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, 19 Vet. App. at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Board finds that written notice provided in April 2002, which predated the initial rating decision, along with the notices provided in June 2005, April 2006 and May 2007, fulfill the provisions of 38 U.S.C.A. § 5103(a) by notifying the Veteran of the type of evidence needed to support his claim for service connection for hypertension secondary to his service connected disabilities. These notices also informed the Veteran that VA would make reasonable efforts to help him obtain necessary evidence with regard to this claim but that he must provide enough information so that the agency could request the relevant records. While the Veteran was not provided notice of the type of evidence necessary to establish a disability rating and effective date for the disability on appeal until April 2006 and May 2007 (i.e., after the original adjudication of his claim), the Board finds that the subsequent readjudication of the claim in the October 2007 supplemental statement of the case "cures" any timing problem associated with this notice. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34; see also Dingess/Hartman, supra. Further, there is otherwise no defect in the content of the VCAA notices that were provided that is prejudicial to the claimant. See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. ___ (2009) (holding that a notice error does not affect the essential fairness of the adjudication in such circumstances as where the claimant demonstrates actual knowledge of the content of the required notice, a reasonable person could be expected to understand from the notice what was needed, or a benefit could not have been awarded as a matter of law). Duty to Assist As to the duty to assist, the Board also finds that all provisions of the VCAA have been met. All available service treatment records and all available and relevant post- service medical records have been obtained and associated with the record on appeal. Additionally, while the appeal was in remand status the Veteran was provided VA examinations in May 2007 that substantially complied with the instructions found in the Board's April 2007 remand. Those examination reports included the requested medical opinions concerning the etiology of the current hypertension, and included adequate supporting rationales for the conclusions reached. See D'Aries v. Peake, 22 Vet. App. 97 (2008); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran in the development of his claim. Under the circumstances of this case, additional efforts to assist the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case and that such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Importantly, the Veteran has pointed to no other pertinent evidence which has not been obtained. Consequently, the Board will proceed to adjudicate the claim. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. § 3.159(b); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. The Service Connection Claim The Veteran, by way of both written submissions and hearing testimony, alleges that his hypertension was caused by his service connected disabilities because such disabilities have prevented him from exercising, which in turn has caused him to gain weight, and this weight gain has then caused and/or contributed to the onset of hypertension. Alternatively, the Veteran claims that his hypertension is a residual of the cold injury to his feet. As an initial matter, the Board notes that the Veteran has only specifically argued that he is seeking service connection for hypertension on the basis that it was caused or aggravated by his service connected disabilities, and not because it is directly related to his period of service. See, e.g., September 2001 statement in support of claim, and May 2006 personal hearing testimony. Moreover, the RO has, appropriately, only adjudicated the claim based on it being due to a service connected disability. See July 2002 rating decision. Therefore, the Board limits its consideration of this matter solely to the issue of secondary service connection. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Hamilton v. Brown, 4 Vet. App. 528 (1993). In this regard, service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. This includes a disability that is made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (aggravation of a nonservice-connected condition by a service-connected condition). The Board notes that 38 C.F.R. § 3.310 was amended during the pendency of this appeal. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a nonservice-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, supra, 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 nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice under the governing case law precedent in Allen prior to the issuance of the regulatory change, and this change clearly puts an additional burden on a claimant that did not previously exist. Consequently, because the Veteran's claim was pending before the regulatory change was made, and because the Board finds the prior existing case law precedent in Allen to be more favorable to the Veteran, the Board will adjudicate the current appeal using the version of 38 C.F.R. § 3.310 in effect before the 2006 regulatory change because it is more favorable to the Veteran. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). In so doing, the Board may accept one medical opinion and reject others. Id. At the same time, the Board cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Thus, the Board must determine the weight to be accorded the various items of evidence in this case based on the quality of the evidence and not necessarily on its quantity or source. With the above criteria in mind, the Board notes that a July 1998 rating decision granted service connection for residuals of cold injury to both feet and residuals of bilateral ankle injuries. Moreover, the record shows the Veteran's complaints and treatment for hypertension starting in 1999. See, e.g., VA treatment records dated in June 1999, August 1999, and September 1999. As to the relationship between the cold injuries to the feet and the bilateral ankle injuries and the hypertension, the Veteran asserts that the service connected disabilities have prevented him from exercising, which in turn has resulted in weight gain, which in turn has caused or contributed to the development of hypertension. Alternatively, the Veteran claims that his hypertension is a residual of the cold injury to his feet. As part of the May 2007 medical examinations, medical opinions were provided concerning the relationship, if any, between the service-connected cold injuries to the feet and hypertension, and the bilateral ankle injuries and hypertension. In this regard, the May 2007 hypertension examiner opined, based on a review of the record and an examination of the Veteran, that "[t]here is no evidence that the cold injuries of his feet or his ankle has [been] any contributing factor[] to his hypertension." As to whether any limitation in physical activity caused by the service connected conditions could be etiologically related to the onset of hypertension, it was opined that "[i]t is not at least as likely as not that any of these conditions are contributing factors in his development of essential hypertension." Further, as to the Veteran's contention that his service connected disability prevented him from exercise and this inactivity in turn caused him to gain weight and develop hypertension, the VA doctor provided this explanation and rationale that "[i]t is not at least as likely as not that his inactivity and weight gain has any contributing factor[] to the development of hypertension." Instead, in view of the family history which reflects that the Veteran's mother has essential hypertension, the doctor stated that "it is at least as likely as not that [the Veteran's] essential hypertension is familiar [i.e., based on the family risk factor of essential hypertension]." Consistent with the negative opinion provided by the hypertension examiner as to the weight gain theory, the May 2007 cold injury examiner opined that "[t]he cold injury symptoms do not prevent [the Veteran] from doing his job or keep him from doing his normal activities at home." Accordingly, given that all of the medical nexus evidence of record is against the Veteran's claims, and with none in support, the Board concludes that his hypertension was not caused or aggravated by the service-connected cold injury residuals of the feet or the residuals of bilateral ankle injuries. The Board recognizes that the Veteran is fully competent and credible to report on the symptoms he is experiencing. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, he is not competent to give a medical opinion as to whether his hypertension is a residual of his service connected cold injury, or whether his service connected disabilities are of such severity that they have prevented him from exercising and that the resulting weight gain caused by this lack of exercise has contributed to the onset of hypertension, because such opinions require medical expertise that the Veteran is not shown to have as a lay person. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Given the above the Board gives more evidentiary weight to the opinions provided by the May 2007 VA examiners who, after a review of the record on appeal and an examination of the Veteran, opined that his hypertension is not caused or aggravated by his service connected residuals of cold injury to both feet and/or residuals of bilateral ankle injuries. Evans, supra. Accordingly, because the preponderance of the evidence shows that the Veteran's hypertension was not caused or aggravated by his service connected residuals of cold injury to both feet and/or residuals of bilateral ankle injuries, the claim for secondary service connection and/or aggravation must be denied. 38 C.F.R. § 3.310. Because a preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim must be denied. ORDER Service connection for hypertension, asserted to be secondary to service-connected residuals of cold injury to both feet and residuals of bilateral ankle injuries, is denied. ____________________________________________ Richard C. Thrasher Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs